Two Federal Appeals Cases Could Reset the Religious Freedom Landscape| National Catholic Register

COMMENTARY: A 5th Circuit case in Louisiana and Texas and a 10th Circuit case in Colorado are worth keeping an eye on.

Most religious liberty battles never reach the Supreme Court. It’s important, then, to pay attention to what is happening in the lower courts. 

Cases currently under review in the federal courts of appeal, for example, will have an immediate impact on the lives of many Americans and can offer important legal roadmaps for courts addressing similar issues in the future.

The entire 5th Circuit is looking at whether the Constitution prohibits Louisiana and Texas laws requiring passive displays of the Ten Commandments in public school classrooms. Meanwhile, the 10th Circuit is considering a second challenge to Colorado’s attempt to exclude faith-based preschools from its Universal Preschool Program unless they abandon their beliefs about marriage and human sexuality.

These cases reveal a troubling contradiction. In Louisiana and Texas, lawmakers want to restore religious texts for voluntary contemplation by students. In Colorado, officials won’t respect the voluntary choices of parents who desire faith-based education.

The Ten Commandments Can Be in Classrooms

Louisiana and Texas require small displays of the Ten Commandments in all public-school classrooms. Critics argue these displays violate the Constitution because the text has religious significance.

Professor Mark David Hall and I show in an amicus brief recently filed with the court in support of the Louisiana law that such displays are consistent with our nation’s history and tradition. We explain that the Supreme Court has rejected outdated legal tests, and now uses an approach rooted in what America has actually done throughout its history.

The evidence is overwhelming. The same First Congress that wrote the First Amendment also appointed chaplains and reauthorized the Northwest Ordinance — declaring religion, morality and knowledge “necessary to good government.” The day after approving the Bill of Rights, Congress asked President Washington to recommend a day of thanksgiving and prayer.

Critics invoke Thomas Jefferson’s famous “wall of separation” phrase. But Jefferson didn’t write and wasn’t in a position to vote for the First Amendment, and even he didn’t exclude religion from public life. 

As part of a committee appointed by the Second Continental Congress, he proposed a national seal depicting Moses with the motto, “Rebellion to tyrants is obedience to God.” As president, he regularly attended worship services held in the Capitol.

The claim that Louisiana mandates a “Protestant” version is a red herring. The text is identical to what the Supreme Court approved in a 2005 case involving the Texas State Capitol. The 1921 Baltimore Catechism includes the same language. The shared substance transcends denominational boundaries.

The Ten Commandments have long been part of American education. Colonial Massachusetts required children to learn biblical laws. Students used the New England Primer, McGuffey’s Readers, and Webster’s Spelling Book, all of which included the Commandments.

Previous courts relied on a 1980 decision that applied a legal test — the “Lemon test” — the Supreme Court has since abandoned. Additionally, recent rulings have upheld religious displays on public property, including a massive Latin Cross war memorial in Maryland. Finally, unlike mandatory prayer, Louisiana’s law requires only a poster display. Students aren’t forced to recite, study or even look at the Commandments.

Colorado’s Attack on Faith-Based Education

Colorado wants to exclude religious preschools that maintain traditional beliefs about marriage and sexuality from participating in the state’s Universal Preschool Program. I filed an amicus brief with that court sharing the stories of Catholic families who support Darren Patterson Christian Academy’s participation in the program while it also operates consistent with religious teaching. 

Andy and Gina Abols have five children, including their daughter Reese, who has spina bifida. While Andy pays taxes that fund free preschool for other families, he must pay out of pocket for her Catholic preschool. “I’m moving backwards to protect our children’s minds,” he says. “I shouldn’t have to.” The money he could save would help cover Reese’s medical expenses and surgeries.

Ana Karen Meier pulled her daughter from public school after administrators failed to stop relentless bullying. She and her husband have sacrificed for seven years to afford Catholic school. “We can’t have fancy dinners, we can’t go out to restaurants.” Their younger children remain shut out from preschool because Colorado’s discriminatory policy keeps costs prohibitive.

These families support Darren Patterson because it holds the same beliefs Catholic teaching affirms: Marriage is between one man and one woman, and God created human beings male and female. The school is fighting for its right to keep internal policies about bathrooms, dress codes and pronouns that follow traditional Christian teaching on how God made us. 

Colorado’s attempt to exclude Darren Patterson violates basic constitutional principles. Insisting Patterson use pronouns that contradict biological reality would unlawfully compel speech by demanding that the school endorse gender ideology it rejects based on religious conviction. The Supreme Court ruled against Colorado for doing this in a 2023 case involving a Christian web designer.

The Catholic families supporting Patterson previously filed an amicus brief with the 10th Circuit in support of Catholic parishes and preschools seeking to safeguard autonomy in admission decisions for faith-based schools participating in the Universal Preschool Program. Those Catholic schools have sought review of their case by the U.S. Supreme Court and the families plan to support their petition before the high court.

Ironies in the Fire

The irony is stark. Louisiana and Texas want to give students voluntary access to foundational texts that shaped Western civilization. Colorado denies parents voluntary access to publicly funded preschool because they choose faith-based education.

The religion clauses found in the First Amendment provide the answer. The Establishment Clause does not require public schools to be insulated from all things that may have a religious significance. And the Free Exercise Clause doesn’t permit government to condition public benefits on abandoning religious belief. 

In recent years, the Supreme Court has affirmed these principles time and time again. The lower courts now have the chance to follow its lead.