{"id":149469,"date":"2026-04-23T16:17:51","date_gmt":"2026-04-24T00:17:51","guid":{"rendered":"https:\/\/xira.com\/p\/2026\/04\/23\/ten-commandments-in-schools-law-upheld-as-fifth-circuit-declares-thou-shalt-not-confuse-us-with-facts\/"},"modified":"2026-04-23T16:17:51","modified_gmt":"2026-04-24T00:17:51","slug":"ten-commandments-in-schools-law-upheld-as-fifth-circuit-declares-thou-shalt-not-confuse-us-with-facts","status":"publish","type":"post","link":"https:\/\/xira.com\/p\/2026\/04\/23\/ten-commandments-in-schools-law-upheld-as-fifth-circuit-declares-thou-shalt-not-confuse-us-with-facts\/","title":{"rendered":"Ten Commandments In Schools Law Upheld, As Fifth Circuit Declares \u2018Thou Shalt Not Confuse Us With Facts\u2019"},"content":{"rendered":"<figure class=\"wp-block-image alignright size-full is-resized\"><img data-recalc-dims=\"1\" decoding=\"async\" loading=\"lazy\" width=\"703\" height=\"497\" src=\"https:\/\/i0.wp.com\/abovethelaw.com\/wp-content\/uploads\/sites\/4\/2026\/04\/GettyImages-1567387247.jpeg?resize=703%2C497&#038;ssl=1\" alt=\"\" class=\"wp-image-1182829\" title=\"\"><figcaption><\/figcaption><\/figure>\n<p>Texas passed a law mandating that schools must display the Ten Commandments in classrooms. Because nothing says, \u201cwe\u2019re not establishing a religion\u201d like forcing students to learn under the watchful eye of a legislature\u2019s preferred scripture.<\/p>\n<p>The law inspired a swift legal challenge because the First Amendment is, to its credit, unambiguous on this point. And this challenge carried the day until it ran into a divided Fifth Circuit. In <em>Nathan v. Alamo Heights Independent School District<\/em>, the en banc Fifth Circuit <a href=\"https:\/\/abovethelaw.com\/2026\/04\/ten-commandments-in-schools-law-upheld-as-fifth-circuit-declares-thou-shalt-not-confuse-us-with-facts\/2\/\" rel=\"nofollow noopener\" target=\"_blank\">decided 9-8<\/a> that, when it talks about protecting the inviolable right of parents to direct the religious education of their own children from state-sponsored interference, it means the inviolable right of parents to teach their kids about Texas Jesus.<\/p>\n<p>And quite literally \u201cTexas Jesus,\u201d because as noted by dissenters, the statute mandates a specific Protestant translation of the Ten Commandments with substantive deviations from even other Judeo-Christian traditions.<\/p>\n<p>To recap, schools teaching kids not to bully gay people equals bad, public schools teaching kids the Protestant Old Testament equals good. Second graders can\u2019t know that gay people exist, but they must understand adultery, by gum!<\/p>\n<p>Judge Stuart Kyle Duncan, last seen <a href=\"https:\/\/abovethelaw.com\/2023\/03\/federal-judge-turns-law-school-event-into-pro-wrestling-style-spectacle\/\" rel=\"nofollow noopener\" target=\"_blank\">getting frazzled trying to answer questions from Stanford Law students<\/a>, wrote the majority opinion and it\u2019s quite the tour de farce. Citing <em>Kennedy<\/em>, the case where the Supreme Court got <a href=\"https:\/\/abovethelaw.com\/2023\/06\/supreme-court-cares-less-about-the-facts-of-a-case-than-hungover-1ls\/\" rel=\"nofollow noopener\" target=\"_blank\">caught falsifying the factual record<\/a>, Duncan rejects on point precedent for having been decided under the abandoned <em>Lemon<\/em> test. Could the Supreme Court\u2019s ahistorical new standard also prohibit a state law requiring the Ten Commandments in public schools? <em>Kennedy<\/em> was, after all, in large part dependent on the idea that the school policy curbed a football coach\u2019s free exercise rights \u2014 an issue not implicated here. Well, we\u2019ll never know, as Duncan\u2019s analysis is that without <em>Lemon<\/em>\u2018s three-prong test (and, specifically, its emphasis on a law having a secular purpose), there are <em>no meaningful limits at all<\/em> on state promotion of religion as long as no student is forced into religious exercise or observance or catechized or taught the text.<\/p>\n<p>One might wonder what the point of the law even is if the state is so confident that students will never even notice these displays. The Fifth Circuit responds: shut up, nerd.<\/p>\n<p>As for infringing the free exercise rights of parents trying to raise their children, the majority handwaves that students don\u2019t have to believe the display. I, for one, am looking forward to the response from the state of Texas when a teacher hangs a Cliff\u2019s Notes version of Sharia law next to the Commandments and points out that no student is required to believe it:<\/p>\n<figure class=\"wp-block-embed is-type-rich is-provider-twitter wp-block-embed-twitter\">\n<div class=\"wp-block-embed__wrapper\">\n<blockquote class=\"twitter-tweet\" data-width=\"500\" data-dnt=\"true\">\n<p lang=\"en\" dir=\"ltr\">To be clear, Sharia law is not allowed in Texas.<\/p>\n<p>Nor are Sharia cities. <\/p>\n<p>Nor are \u201cno go zones\u201c which this project seems to imply.<\/p>\n<p>Bottom line. The project as proposed in the video is not allowed in Texas. <a href=\"https:\/\/t.co\/5Sw5VdXD31\" rel=\"nofollow\">https:\/\/t.co\/5Sw5VdXD31<\/a><\/p>\n<p>\u2014 Greg Abbott (@GregAbbott_TX) <a href=\"https:\/\/twitter.com\/GregAbbott_TX\/status\/1894053102430405050?ref_src=twsrc%5Etfw\" rel=\"nofollow noopener\" target=\"_blank\">February 24, 2025<\/a><\/p><\/blockquote>\n<\/div>\n<\/figure>\n<p>Duncan\u2019s attempt to forge a new explanation of the Establishment Clause follows the familiar pattern of selectively citing secondary source quasi-history. It\u2019s becoming <a href=\"https:\/\/abovethelaw.com\/2025\/07\/the-revolution-will-be-card-cataloged-dispatches-from-the-law-librarian-frontlines\/\" rel=\"nofollow noopener\" target=\"_blank\">a cottage industry<\/a> for conservative former law clerks, without training in the historical method, to compile a string of historical factoids into an article, publish it in some student-edited journal, and then watch judges run with it as though it\u2019s historical scholarship laying out a definitive account.<\/p>\n<p>Which, of course, invites some tension when the real historians show up with receipts.<\/p>\n<blockquote class=\"wp-block-quote is-layout-flow wp-block-quote-is-layout-flow\">\n<p>The correct analysis, as the Supreme Court has explained, is to ask whether a challenged law shares the \u201challmarks of religious establishments the framers sought to prohibit when they adopted the First Amendment.\u201d Kennedy, 597 U.S. at 537; see also Hilsenrath, 136 F.4th at 491 n.54 (asking whether plaintiffs have \u201cprov[en] a set of <strong>facts<\/strong> that would have historically been understood as an establishment of religion\u201d).<\/p>\n<\/blockquote>\n<p>Emphasis added. <\/p>\n<p>The district court allowed expert testimony from religious scholars and historians, a prudent decision if one actually believed that the standard involves figuring out what \u201cwould have historically been understood as an establishment of religion.\u201d But that testimony did not work out for the majority\u2019s preordained outcome, and so they needed Duncan to handwave it all away.<\/p>\n<blockquote class=\"wp-block-quote is-layout-flow wp-block-quote-is-layout-flow\">\n<p>What the founding generation understood as an establishment of religion is a legal question to be decided by a court, not a \u201cfact\u201d question to be decided by experts, no matter how credentialed.<\/p>\n<\/blockquote>\n<p>This is a mere <em>two paragraphs<\/em> removed from the quote about having to prove \u201ca set of facts.\u201d Beyond parody.<\/p>\n<p>So how can the majority navigate this hybrid not-a-fact-set-of-facts? As always, \u201cJD Hubris\u201d comes to the rescue. For once you have a law degree, you can be an expert in every subject! Indeed, your law school education makes you even more of an expert than someone who devoted their entire professional career to a subject.<\/p>\n<blockquote class=\"wp-block-quote is-layout-flow wp-block-quote-is-layout-flow\">\n<p>[Judges] do so by consulting articles, books, and historical sources and bringing their own independent judgment to bear on them\u2014not by<br \/>appointing an \u201cexpert,\u201d whose \u201cfindings\u201d are insulated by clear-error review on appeal.<\/p>\n<\/blockquote>\n<p>It\u2019s the \u201cIvE dOnE mY oWn ReSeArCh\u201d meme made flesh. <\/p>\n<p>But, in fairness to Duncan, without committing the air quotes to print, this sentence might read as a serious person\u2019s analysis. We would be remiss not to thank him for being honest.<\/p>\n<p>Of course, he\u2019s unintentionally hit on the problem with originalism. In the effort to disguise that they\u2019re just reverse engineering decisions to match their policy priorities, they contrived a factual basis for their whole interpretive project. By dressing it up this way, they tried to cynically borrow legitimacy by claiming their philosophy was \u201cfact,\u201d but they never had a plan to deal with the reality that factual questions invite the need for historians who practice with the sort of intellectual rigor that eludes Duncan.<\/p>\n<p>This is where he should retreat to some sort of neo-textualism and try to argue \u2014 somehow \u2014 that a state law forcing public schools to display the Ten Commandments does not amount to an official expression of religion. Instead, he tries to square-peg-round-hole reject the factual record in a case about\u2026 <em>a set of facts<\/em>.<\/p>\n<blockquote class=\"wp-block-quote is-layout-flow wp-block-quote-is-layout-flow\">\n<p>Plaintiffs would rely on this practice to resolve \u201cfact issues\u201d about the Ten Commandments\u2019 role in American history. But they confuse the kind of facts experts can help determine (so-called \u201cadjudicative facts\u201d) from facts that are decided by courts (so-called \u201clegislative facts\u201d). See, e.g., Moore v. Madigan, 702 F.3d 933, 942 (7th Cir. 2012) (distinguishing \u201c\u2018legislative facts,\u2019 which . . . bear on the justification for legislation, as distinct from facts concerning the conduct of parties in a particular case (\u2018adjudicative facts\u2019)\u201d (citing Fed. R. Evid. 201(a))). As Judge Posner has explained, \u201cOnly adjudicative facts are determined in trials, and only legislative facts are relevant to the constitutionality of [a challenged law].\u201d<\/p>\n<\/blockquote>\n<p>I am once again begging Fifth Circuit judges to ACTUALLY READ THE CASES THEY CITE. This came up in <em>Rahimi<\/em>, when Judge Ho wrote a concurrence citing a pair of cases that <a href=\"https:\/\/abovethelaw.com\/2023\/02\/judge-ho-domestic-abuse-gun-rahimi\/\" rel=\"nofollow noopener\" target=\"_blank\">actually concluded the opposite way<\/a>. <\/p>\n<p>Here, Duncan cites Judge Posner \u2014 hoping to bask in the borrowed glory of a respected jurist \u2014 to categorize the historical record as \u201clegislative facts,\u201d which, despite the name, pose a question of law and not fact. <\/p>\n<p>Except, that\u2019s not what Posner\u2019s decision says.<\/p>\n<p><em><a href=\"https:\/\/law.justia.com\/cases\/federal\/appellate-courts\/ca7\/12-1269\/12-1269-2012-12-11.html\" rel=\"nofollow noopener\" target=\"_blank\">Moore v. Madigan<\/a><\/em> challenged an Illinois gun regulation. Writing for the majority, Judge Posner made two separate conclusions. Regarding history, Posner wrote that the Seventh Circuit could not relitigate the history of the Second Amendment in light of <em>Heller<\/em> and <em>McDonald<\/em> \u2014 for better or worse. \u201cThe Supreme Court rejected the argument,\u201d Posner wrote. \u201cThe appellees ask us to repudiate the Court\u2019s historical analysis. That we can\u2019t do.\u201d Posner does not dismiss the analysis of expert historians as improper \u2014 he writes that the matter is settled above his pay grade.<\/p>\n<p>So what are \u201clegislative facts?\u201d After establishing that the Seventh Circuit would not revisit the historical underpinnings of the Second Amendment, Posner\u2019s opinion concludes that there\u2019s no further evidentiary issue for a trial court to determine, because \u201cThe key legislative facts in this case are the effects of the Illinois law; the state has failed to show that those effects are positive.\u201d Continuing, Judge Posner explains that, \u201cIllinois had to provide us with more than merely a rational basis for believing that its uniquely sweeping ban is justified by an increase in public safety. It has failed to meet this burden.\u201d<\/p>\n<p>Note how the \u201clegislative facts\u201d were <em>not the history of the right<\/em>. <\/p>\n<p>The generous reading of Duncan invoking <em>Moore v. Madigan<\/em> is that he\u2019s just trying to bootstrap history onto this convenient category of non-fact-facts. But to do that requires characterizing the relevant historical issue as an assessment of the Framers\u2019 legislative intent. But true originalists have spent years telling us that legislative intent is the wrong inquiry, instead elevating \u201coriginal public meaning\u201d or a more vague concept of \u201chistory and tradition.\u201d And they did this for good reason: legislative intent narrows the paper trail too much. Expanding the historical inquiry to the public at large makes it a lot easier to cherry pick historical nuggets from long-forgotten pamphleteers and sepia-toned newspapers. <\/p>\n<p>The downside is that it requires judges to treat history the way <a href=\"https:\/\/abovethelaw.com\/2021\/11\/remember-when-a-law-school-prof-said-only-500-americans-would-die-of-covid-whatever-happened-with-that\/\" rel=\"nofollow noopener\" target=\"_blank\">Richard Epstein treats epidemiology \u2014 by declaring, based on pure legal intuition, that COVID wouldn\u2019t kill more than 500 people<\/a>. Pinning the law to history was supposed to provide a veneer of credibility. Telling the public that judges will \u201cbring[] their own independent judgment to bear\u201d on writing, or rewriting, history throws that out the window. It is an empty husk at that point, stripped of its already flimsy faux intellectual justifications. <\/p>\n<p><em>(Full opinion on the next page\u2026)<\/em><\/p>\n<hr>\n<p><strong><em><img data-recalc-dims=\"1\" loading=\"lazy\" decoding=\"async\" class=\"alignright wp-image-443318\" src=\"https:\/\/i0.wp.com\/abovethelaw.com\/wp-content\/uploads\/sites\/4\/2016\/11\/Headshot-300x200.jpg?resize=189%2C126&#038;ssl=1\" alt=\"Headshot\" width=\"189\" height=\"126\" title=\"\"><a href=\"http:\/\/abovethelaw.com\/author\/joe-patrice\/\" target=\"_blank\" rel=\"noopener nofollow\">Joe Patrice<\/a>\u00a0is a senior editor at Above the Law and co-host of <a href=\"http:\/\/legaltalknetwork.com\/podcasts\/thinking-like-a-lawyer\/\" target=\"_blank\" rel=\"noopener nofollow\">Thinking Like A Lawyer<\/a>. Feel free to\u00a0<a href=\"mailto:joepatrice@abovethelaw.com\">email<\/a> any tips, questions, or comments. Follow him on\u00a0<a href=\"https:\/\/twitter.com\/josephpatrice\" target=\"_blank\" rel=\"noopener nofollow\">Twitter<\/a>\u00a0or <a href=\"https:\/\/bsky.app\/profile\/joepatrice.bsky.social\" rel=\"noopener nofollow\" target=\"_blank\">Bluesky<\/a> if you\u2019re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a <a href=\"https:\/\/www.rpnexecsearch.com\/josephpatrice\" target=\"_blank\" rel=\"noopener nofollow\">Managing Director at RPN Executive Search<\/a>.<\/em><\/strong><\/p>\n<\/p>\n<p>The post <a href=\"https:\/\/abovethelaw.com\/2026\/04\/ten-commandments-in-schools-law-upheld-as-fifth-circuit-declares-thou-shalt-not-confuse-us-with-facts\/\" rel=\"nofollow noopener\" target=\"_blank\">Ten Commandments In Schools Law Upheld, As Fifth Circuit Declares \u2018Thou Shalt Not Confuse Us With Facts\u2019<\/a> appeared first on <a href=\"https:\/\/abovethelaw.com\/\" rel=\"nofollow noopener\" target=\"_blank\">Above the Law<\/a>.<\/p>\n<figure class=\"wp-block-image alignright size-full is-resized\"><img data-recalc-dims=\"1\" decoding=\"async\" loading=\"lazy\" width=\"703\" height=\"497\" src=\"https:\/\/i0.wp.com\/abovethelaw.com\/wp-content\/uploads\/sites\/4\/2026\/04\/GettyImages-1567387247.jpeg?resize=703%2C497&#038;ssl=1\" alt=\"\" class=\"wp-image-1182829\" title=\"\"><figcaption><\/figcaption><\/figure>\n<p>Texas passed a law mandating that schools must display the Ten Commandments in classrooms. Because nothing says, \u201cwe\u2019re not establishing a religion\u201d like forcing students to learn under the watchful eye of a legislature\u2019s preferred scripture.<\/p>\n<p>The law inspired a swift legal challenge because the First Amendment is, to its credit, unambiguous on this point. And this challenge carried the day until it ran into a divided Fifth Circuit. In <em>Nathan v. Alamo Heights Independent School District<\/em>, the en banc Fifth Circuit <a href=\"https:\/\/abovethelaw.com\/2026\/04\/ten-commandments-in-schools-law-upheld-as-fifth-circuit-declares-thou-shalt-not-confuse-us-with-facts\/2\/\" rel=\"nofollow noopener\" target=\"_blank\">decided 9-8<\/a> that, when it talks about protecting the inviolable right of parents to direct the religious education of their own children from state-sponsored interference, it means the inviolable right of parents to teach their kids about Texas Jesus.<\/p>\n<p>And quite literally \u201cTexas Jesus,\u201d because as noted by dissenters, the statute mandates a specific Protestant translation of the Ten Commandments with substantive deviations from even other Judeo-Christian traditions.<\/p>\n<p>To recap, schools teaching kids not to bully gay people equals bad, public schools teaching kids the Protestant Old Testament equals good. Second graders can\u2019t know that gay people exist, but they must understand adultery, by gum!<\/p>\n<p>Judge Stuart Kyle Duncan, last seen <a href=\"https:\/\/abovethelaw.com\/2023\/03\/federal-judge-turns-law-school-event-into-pro-wrestling-style-spectacle\/\" rel=\"nofollow noopener\" target=\"_blank\">getting frazzled trying to answer questions from Stanford Law students<\/a>, wrote the majority opinion and it\u2019s quite the tour de farce. Citing <em>Kennedy<\/em>, the case where the Supreme Court got <a href=\"https:\/\/abovethelaw.com\/2023\/06\/supreme-court-cares-less-about-the-facts-of-a-case-than-hungover-1ls\/\" rel=\"nofollow noopener\" target=\"_blank\">caught falsifying the factual record<\/a>, Duncan rejects on point precedent for having been decided under the abandoned <em>Lemon<\/em> test. Could the Supreme Court\u2019s ahistorical new standard also prohibit a state law requiring the Ten Commandments in public schools? <em>Kennedy<\/em> was, after all, in large part dependent on the idea that the school policy curbed a football coach\u2019s free exercise rights \u2014 an issue not implicated here. Well, we\u2019ll never know, as Duncan\u2019s analysis is that without <em>Lemon<\/em>\u2018s three-prong test (and, specifically, its emphasis on a law having a secular purpose), there are <em>no meaningful limits at all<\/em> on state promotion of religion as long as no student is forced into religious exercise or observance or catechized or taught the text.<\/p>\n<p>One might wonder what the point of the law even is if the state is so confident that students will never even notice these displays. The Fifth Circuit responds: shut up, nerd.<\/p>\n<p>As for infringing the free exercise rights of parents trying to raise their children, the majority handwaves that students don\u2019t have to believe the display. I, for one, am looking forward to the response from the state of Texas when a teacher hangs a Cliff\u2019s Notes version of Sharia law next to the Commandments and points out that no student is required to believe it:<\/p>\n<figure class=\"wp-block-embed is-type-rich is-provider-twitter wp-block-embed-twitter\">\n<div class=\"wp-block-embed__wrapper\">\n<blockquote class=\"twitter-tweet\" data-width=\"500\" data-dnt=\"true\">\n<p lang=\"en\" dir=\"ltr\">To be clear, Sharia law is not allowed in Texas.<\/p>\n<p>Nor are Sharia cities. <\/p>\n<p>Nor are \u201cno go zones\u201c which this project seems to imply.<\/p>\n<p>Bottom line. The project as proposed in the video is not allowed in Texas. <a href=\"https:\/\/t.co\/5Sw5VdXD31\" rel=\"nofollow\">https:\/\/t.co\/5Sw5VdXD31<\/a><\/p>\n<p>\u2014 Greg Abbott (@GregAbbott_TX) <a href=\"https:\/\/twitter.com\/GregAbbott_TX\/status\/1894053102430405050?ref_src=twsrc%5Etfw\" rel=\"nofollow noopener\" target=\"_blank\">February 24, 2025<\/a><\/p><\/blockquote>\n<\/div>\n<\/figure>\n<p>Duncan\u2019s attempt to forge a new explanation of the Establishment Clause follows the familiar pattern of selectively citing secondary source quasi-history. It\u2019s becoming <a href=\"https:\/\/abovethelaw.com\/2025\/07\/the-revolution-will-be-card-cataloged-dispatches-from-the-law-librarian-frontlines\/\" rel=\"nofollow noopener\" target=\"_blank\">a cottage industry<\/a> for conservative former law clerks, without training in the historical method, to compile a string of historical factoids into an article, publish it in some student-edited journal, and then watch judges run with it as though it\u2019s historical scholarship laying out a definitive account.<\/p>\n<p>Which, of course, invites some tension when the real historians show up with receipts.<\/p>\n<blockquote class=\"wp-block-quote is-layout-flow wp-block-quote-is-layout-flow\">\n<p>The correct analysis, as the Supreme Court has explained, is to ask whether a challenged law shares the \u201challmarks of religious establishments the framers sought to prohibit when they adopted the First Amendment.\u201d Kennedy, 597 U.S. at 537; see also Hilsenrath, 136 F.4th at 491 n.54 (asking whether plaintiffs have \u201cprov[en] a set of <strong>facts<\/strong> that would have historically been understood as an establishment of religion\u201d).<\/p>\n<\/blockquote>\n<p>Emphasis added. <\/p>\n<p>The district court allowed expert testimony from religious scholars and historians, a prudent decision if one actually believed that the standard involves figuring out what \u201cwould have historically been understood as an establishment of religion.\u201d But that testimony did not work out for the majority\u2019s preordained outcome, and so they needed Duncan to handwave it all away.<\/p>\n<blockquote class=\"wp-block-quote is-layout-flow wp-block-quote-is-layout-flow\">\n<p>What the founding generation understood as an establishment of religion is a legal question to be decided by a court, not a \u201cfact\u201d question to be decided by experts, no matter how credentialed.<\/p>\n<\/blockquote>\n<p>This is a mere <em>two paragraphs<\/em> removed from the quote about having to prove \u201ca set of facts.\u201d Beyond parody.<\/p>\n<p>So how can the majority navigate this hybrid not-a-fact-set-of-facts? As always, \u201cJD Hubris\u201d comes to the rescue. For once you have a law degree, you can be an expert in every subject! Indeed, your law school education makes you even more of an expert than someone who devoted their entire professional career to a subject.<\/p>\n<blockquote class=\"wp-block-quote is-layout-flow wp-block-quote-is-layout-flow\">\n<p>[Judges] do so by consulting articles, books, and historical sources and bringing their own independent judgment to bear on them\u2014not by<br \/>appointing an \u201cexpert,\u201d whose \u201cfindings\u201d are insulated by clear-error review on appeal.<\/p>\n<\/blockquote>\n<p>It\u2019s the \u201cIvE dOnE mY oWn ReSeArCh\u201d meme made flesh. <\/p>\n<p>But, in fairness to Duncan, without committing the air quotes to print, this sentence might read as a serious person\u2019s analysis. We would be remiss not to thank him for being honest.<\/p>\n<p>Of course, he\u2019s unintentionally hit on the problem with originalism. In the effort to disguise that they\u2019re just reverse engineering decisions to match their policy priorities, they contrived a factual basis for their whole interpretive project. By dressing it up this way, they tried to cynically borrow legitimacy by claiming their philosophy was \u201cfact,\u201d but they never had a plan to deal with the reality that factual questions invite the need for historians who practice with the sort of intellectual rigor that eludes Duncan.<\/p>\n<p>This is where he should retreat to some sort of neo-textualism and try to argue \u2014 somehow \u2014 that a state law forcing public schools to display the Ten Commandments does not amount to an official expression of religion. Instead, he tries to square-peg-round-hole reject the factual record in a case about\u2026 <em>a set of facts<\/em>.<\/p>\n<blockquote class=\"wp-block-quote is-layout-flow wp-block-quote-is-layout-flow\">\n<p>Plaintiffs would rely on this practice to resolve \u201cfact issues\u201d about the Ten Commandments\u2019 role in American history. But they confuse the kind of facts experts can help determine (so-called \u201cadjudicative facts\u201d) from facts that are decided by courts (so-called \u201clegislative facts\u201d). See, e.g., Moore v. Madigan, 702 F.3d 933, 942 (7th Cir. 2012) (distinguishing \u201c\u2018legislative facts,\u2019 which . . . bear on the justification for legislation, as distinct from facts concerning the conduct of parties in a particular case (\u2018adjudicative facts\u2019)\u201d (citing Fed. R. Evid. 201(a))). As Judge Posner has explained, \u201cOnly adjudicative facts are determined in trials, and only legislative facts are relevant to the constitutionality of [a challenged law].\u201d<\/p>\n<\/blockquote>\n<p>I am once again begging Fifth Circuit judges to ACTUALLY READ THE CASES THEY CITE. This came up in <em>Rahimi<\/em>, when Judge Ho wrote a concurrence citing a pair of cases that <a href=\"https:\/\/abovethelaw.com\/2023\/02\/judge-ho-domestic-abuse-gun-rahimi\/\" rel=\"nofollow noopener\" target=\"_blank\">actually concluded the opposite way<\/a>. <\/p>\n<p>Here, Duncan cites Judge Posner \u2014 hoping to bask in the borrowed glory of a respected jurist \u2014 to categorize the historical record as \u201clegislative facts,\u201d which, despite the name, pose a question of law and not fact. <\/p>\n<p>Except, that\u2019s not what Posner\u2019s decision says.<\/p>\n<p><em><a href=\"https:\/\/law.justia.com\/cases\/federal\/appellate-courts\/ca7\/12-1269\/12-1269-2012-12-11.html\" rel=\"nofollow noopener\" target=\"_blank\">Moore v. Madigan<\/a><\/em> challenged an Illinois gun regulation. Writing for the majority, Judge Posner made two separate conclusions. Regarding history, Posner wrote that the Seventh Circuit could not relitigate the history of the Second Amendment in light of <em>Heller<\/em> and <em>McDonald<\/em> \u2014 for better or worse. \u201cThe Supreme Court rejected the argument,\u201d Posner wrote. \u201cThe appellees ask us to repudiate the Court\u2019s historical analysis. That we can\u2019t do.\u201d Posner does not dismiss the analysis of expert historians as improper \u2014 he writes that the matter is settled above his pay grade.<\/p>\n<p>So what are \u201clegislative facts?\u201d After establishing that the Seventh Circuit would not revisit the historical underpinnings of the Second Amendment, Posner\u2019s opinion concludes that there\u2019s no further evidentiary issue for a trial court to determine, because \u201cThe key legislative facts in this case are the effects of the Illinois law; the state has failed to show that those effects are positive.\u201d Continuing, Judge Posner explains that, \u201cIllinois had to provide us with more than merely a rational basis for believing that its uniquely sweeping ban is justified by an increase in public safety. It has failed to meet this burden.\u201d<\/p>\n<p>Note how the \u201clegislative facts\u201d were <em>not the history of the right<\/em>. <\/p>\n<p>The generous reading of Duncan invoking <em>Moore v. Madigan<\/em> is that he\u2019s just trying to bootstrap history onto this convenient category of non-fact-facts. But to do that requires characterizing the relevant historical issue as an assessment of the Framers\u2019 legislative intent. But true originalists have spent years telling us that legislative intent is the wrong inquiry, instead elevating \u201coriginal public meaning\u201d or a more vague concept of \u201chistory and tradition.\u201d And they did this for good reason: legislative intent narrows the paper trail too much. Expanding the historical inquiry to the public at large makes it a lot easier to cherry pick historical nuggets from long-forgotten pamphleteers and sepia-toned newspapers. <\/p>\n<p>The downside is that it requires judges to treat history the way <a href=\"https:\/\/abovethelaw.com\/2021\/11\/remember-when-a-law-school-prof-said-only-500-americans-would-die-of-covid-whatever-happened-with-that\/\" rel=\"nofollow noopener\" target=\"_blank\">Richard Epstein treats epidemiology \u2014 by declaring, based on pure legal intuition, that COVID wouldn\u2019t kill more than 500 people<\/a>. Pinning the law to history was supposed to provide a veneer of credibility. Telling the public that judges will \u201cbring[] their own independent judgment to bear\u201d on writing, or rewriting, history throws that out the window. It is an empty husk at that point, stripped of its already flimsy faux intellectual justifications. <\/p>\n<p><em>(Full opinion on the next page\u2026)<\/em><\/p>\n<hr>\n<p><strong><em><img data-recalc-dims=\"1\" loading=\"lazy\" decoding=\"async\" class=\"alignright wp-image-443318\" src=\"https:\/\/i0.wp.com\/abovethelaw.com\/wp-content\/uploads\/sites\/4\/2016\/11\/Headshot-300x200.jpg?resize=189%2C126&#038;ssl=1\" alt=\"Headshot\" width=\"189\" height=\"126\" title=\"\"><a href=\"http:\/\/abovethelaw.com\/author\/joe-patrice\/\" target=\"_blank\" rel=\"noopener nofollow\">Joe Patrice<\/a>\u00a0is a senior editor at Above the Law and co-host of <a href=\"http:\/\/legaltalknetwork.com\/podcasts\/thinking-like-a-lawyer\/\" target=\"_blank\" rel=\"noopener nofollow\">Thinking Like A Lawyer<\/a>. Feel free to\u00a0<a href=\"mailto:joepatrice@abovethelaw.com\">email<\/a> any tips, questions, or comments. Follow him on\u00a0<a href=\"https:\/\/twitter.com\/josephpatrice\" target=\"_blank\" rel=\"noopener nofollow\">Twitter<\/a>\u00a0or <a href=\"https:\/\/bsky.app\/profile\/joepatrice.bsky.social\" rel=\"noopener nofollow\" target=\"_blank\">Bluesky<\/a> if you\u2019re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a <a href=\"https:\/\/www.rpnexecsearch.com\/josephpatrice\" target=\"_blank\" rel=\"noopener nofollow\">Managing Director at RPN Executive Search<\/a>.<\/em><\/strong><\/p>\n<\/p>\n<p>The post <a href=\"https:\/\/abovethelaw.com\/2026\/04\/ten-commandments-in-schools-law-upheld-as-fifth-circuit-declares-thou-shalt-not-confuse-us-with-facts\/\" rel=\"nofollow noopener\" target=\"_blank\">Ten Commandments In Schools Law Upheld, As Fifth Circuit Declares \u2018Thou Shalt Not Confuse Us With Facts\u2019<\/a> appeared first on <a href=\"https:\/\/abovethelaw.com\/\" rel=\"nofollow noopener\" target=\"_blank\">Above the Law<\/a>.<\/p>\n","protected":false},"excerpt":{"rendered":"<p>Texas passed a law mandating that schools must display the Ten Commandments in classrooms. Because nothing says, \u201cwe\u2019re not establishing a religion\u201d like forcing students to learn under the watchful eye of a legislature\u2019s preferred scripture. The law inspired a swift legal challenge because the First Amendment is, to its credit, unambiguous on this point. [&hellip;]<\/p>\n","protected":false},"author":3,"featured_media":149442,"comment_status":"","ping_status":"","sticky":false,"template":"","format":"standard","meta":{"_et_pb_use_builder":"","_et_pb_old_content":"","_et_gb_content_width":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16],"tags":[],"class_list":["post-149469","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-above_the_law"],"jetpack_featured_media_url":"https:\/\/i0.wp.com\/xira.com\/p\/wp-content\/uploads\/2026\/04\/Headshot-300x200-bX11w1.jpg?fit=300%2C200&ssl=1","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts\/149469","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/comments?post=149469"}],"version-history":[{"count":0,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts\/149469\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/media\/149442"}],"wp:attachment":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/media?parent=149469"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/categories?post=149469"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/tags?post=149469"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}