May 14, 2026 • 9 mins
Legal analyst Zack Smith, Heritage Foundation, breaks down the important ruling with Preston.
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Speaker 1 (00:02):
Welcome to the third hour of the Morning Show with
Preston Scott. Great to be with you this morning. As always,
Jose's over there in Studio one A. I am here
in Studio one B. Zack Smith is a senior legal Fellow,
manager of the Supreme Court and Appellate Advocacy Program at
the Heritage Foundation, frequent guest, friend of the program and
(00:24):
a friend of mine. Zach, Good to have you back
on the show. How are you, sir, Well, I'm doing well.
Speaker 2 (00:29):
Thanks so much for having me on this morning.
Speaker 1 (00:31):
Of course, you wrote something that I think slid by
some folks that in this audience they need to know
about this because I think it's a very encouraging ruling
at a time when we're not getting a whole lot
of them. We're getting some. But tell us about this
story about the ruling of the Fifth Circuit of the
(00:54):
Court of Appeals.
Speaker 2 (00:56):
Yeah, So the Fifth Circuit overseas Texas, Louisiana, Mississippi, and
essentially they were asked recently to rule on whether Texas's
new law requiring schools to post the Ten Commandments, whether
that violated the Constitution. Now, I think it's important to
understand preston this law that Texas passed SB ten. It
provides simply that every school in the state should post
(01:19):
the Ten Commandments, no commentary, no other items attached to it,
just the text of the Ten Commandments. And of course
some folks challenged that, they said it violated the First Amendment,
it violated the establishment clause, it violated the free exercise clause.
But in a very masterful opinion, Judge Kyle Duncan on
the Fifth Circuit explained why that just wasn't so, and
(01:40):
why this Texas law could in fact go into effect.
Speaker 1 (01:45):
How did he come to that opinion, And was it
buttressed by something recently done in the US Supreme Court
that kind of allows the circuit courts to flex a
little muscle on these issues.
Speaker 2 (01:57):
Yeah, absolutely so. I think to understand why why discipinion
is so important, why it's such a watershed moment, we
have to go back to the nineteen seventies. In the
nineteen seventies to the US Supreme Court put forward a
very problematic case called Women Versus Kurtzman, and essentially this
case led to many of the problematic rulings that said
(02:17):
you couldn't display the Ten Commandments it led to challenges
to prayer in school. It basically said that the government
couldn't do anything that would excessively entangle itself in religion. Now,
the problem with that preston is that's not how the
framers of our Constitution understood the First Amendment. If you
go back and look, Thomas Jefferson held worship services in
(02:40):
the US Capital, George Washington, John Adams, every president for
the first decades of our country allowed some form of
public expression of faith to take place on US government grounds,
on US property, and that was never seen as a
violation of the Establishment Clause. But starting in the sixties
(03:00):
and seventies, the US Supreme Court really warped the Establishment
Clause case law. And fortunately the US Supreme Court several
years ago, in the Kennedy versus Brimerdon School District case.
You may remember, it's the coach Kennedy case. You're going
to prey on the field before football games. The US
Supreme Court says, look, the Lemen case, that line of
(03:23):
cases that stem from it, that's bad case. Lawns not
how the framers would have understood this. We are going
to overturn Lemen, We're going to reject that precedent, and
going forward, we're going to look at the history and
tradition of our country to understand what the First Amendment
requires or what the First Amendment would prohibit. And so
(03:44):
essentially what the Fifth Circuit did in this case, in
this case involving the Ten Commandments, they just expanded on
that history and tradition test that the Supreme Court first
readopted in the Coach Kennedy case.
Speaker 1 (03:57):
Zach, Is this the first significant case that is buttressed
by the Supreme Court ruling in Kennedy versus Bremerton.
Speaker 2 (04:07):
Well, there's been a line of cases preston, and essentially
what the lower federal courts are having to do, they're
having to go back and address situations that the Supreme
Court had previously said were unconstitutional, you know, under the
limit test, because governments were trying to avoid an excessive
tanglement with religion, because they had to show some secular
(04:27):
purpose to displaying items like the Ten Commandments. That's why
you had really absurd situations where you had city halls
displaying the Ten Commandments or Nativity seeings alongside Snoopy or
Frosty the Snowman. Are these other types of secular displays
because the government said you couldn't have a solely religious expression.
(04:47):
And so again this is one of the first major
lower federal court cases where essentially the lower federal courts
are going back looking at some of those situations and
saying no, no, no, no. At the the framers of our
constitution would have understood this type of display to be
perfectly permissible, Zach.
Speaker 1 (05:07):
I have long argued, because of course I stayed in
a holiday in express and I am a constitutional scholar
as a result of it, I have long argued that
whether it's on our currency coin, that acknowledging a faith
does not establish one. That acknowledging the Ten Commandments does
(05:27):
not establish a church or a religion, It merely acknowledges one.
Is that an argument that is just too simple and
too shallow.
Speaker 2 (05:37):
Well, preston with your holiday in express day. I would
place you on a Court of Appeals over some of
the sitting federal judges right now, because I think that
understanding is much much better. And in fact, if you
go and look at the Fifth Circuit opinion, they say
there are six hallmarks that were typically understood at the
founding to establish in a religion on the work of
(06:00):
Professor Michael McConnell from Stanford University. And unless you're being
coerced to attend church, unless you're being coerced to forcibly
provide tax dollars to a church, things of that nature.
The Fifth Circus said, that's not If those types of
things aren't present, then that that action isn't enough to
establish a religion.
Speaker 1 (06:21):
Those six hallmarks that you note, and I love that,
I love that you dug that out. Are those part
of the ruling, the opinion that was written. And do
they now establish a bit of a more clear cut
precedent for subsequent rulings by courts, maybe even outside the
Fifth Circuit.
Speaker 2 (06:42):
Yes, they do. It provides guideposts for courts to look
at landmarks to help courts untangle essentially what would have
been permitted what would have been prohibited at the founding
at the time our Constitution was adopted. Now, I think
it's important to emphasize, though, press and this is one
Court of Appeals, although other Court of Appeals have issued
(07:03):
similar types of rulings looking at these hallmarks as well.
But this is an issue that could eventually make its
way back up to the US Supreme Court. But I
think what this decision in particular has done has really
made clear that many of those old decisions, those post
limited decisions with that very flawed rationale thatout those decisions
(07:25):
now have to be revisited on a case by case
basis as this new standard they should apply.
Speaker 1 (07:31):
I'm curious are there groups of i'll say activists on
the right side of this that are going to now
start picking at those cases and try to find means
to overturn some of those previous rulings.
Speaker 2 (07:48):
Well, if by activists you mean every day citizens who
want to do things like prey in certain settings or
display signs of their faith, then yes, certainly. And keep
in mind they're way this case game before the court.
The state of Texas, Texas pass SB ten, which required
schools to post the text of the Ten Commandments. And
so essentially it was folks on the left who challenged
(08:11):
that Texas law that caused this case to come before
the Fifth Circuit ultimately, and so you'll see these cases
coming up through a variety of mechanisms. But I think
the takeaway here, Preston, is that public displays of faith,
public eight acknowledgments of faith. As you said, those aren't
prohibited by the Constitution, and the framers, those who adopted
(08:32):
our Constitution, would never have understood it to prohibit those
types of public acknowledgments.
Speaker 1 (08:38):
All right, last question for Zach, and then I'll let
you go. I'm just curious inside the Fifth Circuit you said,
we're talking Texas, Louisiana, and Mississippi. Right, is you mentioned
that this could find its way back to the Supreme Court?
It could? Does it? Is it likely to go the
other way? Will this ruling now impact federal that we
(09:00):
have seen all too often district judges try to expand
their powers beyond their boundaries. Does this provide them a guidepost,
whether they like it or not.
Speaker 2 (09:11):
Well, it certainly provides a guidepost. And I think any
judge or across the country would do well to look
at this opinion for guidance. Because this was an opinion
of the Fifth Circuit only governing those three states that
you mentioned. It will only bind the judges within those circuits.
These judges in Texas, Louisiana, Mississippi, they have to follow
this decision. Judges in other circuits don't have to follow it.
(09:36):
It's not technically binding. But again, they would do well
to look at it for advice and guidance as they
too are confronting these types of issues.
Speaker 1 (09:44):
Very good to visit with you again, Zach. Thanks for
the time this morning.
Speaker 2 (09:48):
Of course thanks for having me on
Welcome to the third hour of the Morning Show with
Preston Scott. Great to be with you this morning. As always,
Jose's over there in Studio one A. I am here
in Studio one B. Zack Smith is a senior legal Fellow,
manager of the Supreme Court and Appellate Advocacy Program at
the Heritage Foundation, frequent guest, friend of the program and
(00:24):
a friend of mine. Zach, Good to have you back
on the show. How are you, sir, Well, I'm doing well.
Speaker 2 (00:29):
Thanks so much for having me on this morning.
Speaker 1 (00:31):
Of course, you wrote something that I think slid by
some folks that in this audience they need to know
about this because I think it's a very encouraging ruling
at a time when we're not getting a whole lot
of them. We're getting some. But tell us about this
story about the ruling of the Fifth Circuit of the
(00:54):
Court of Appeals.
Speaker 2 (00:56):
Yeah, So the Fifth Circuit overseas Texas, Louisiana, Mississippi, and
essentially they were asked recently to rule on whether Texas's
new law requiring schools to post the Ten Commandments, whether
that violated the Constitution. Now, I think it's important to
understand preston this law that Texas passed SB ten. It
provides simply that every school in the state should post
(01:19):
the Ten Commandments, no commentary, no other items attached to it,
just the text of the Ten Commandments. And of course
some folks challenged that, they said it violated the First Amendment,
it violated the establishment clause, it violated the free exercise clause.
But in a very masterful opinion, Judge Kyle Duncan on
the Fifth Circuit explained why that just wasn't so, and
(01:40):
why this Texas law could in fact go into effect.
Speaker 1 (01:45):
How did he come to that opinion, And was it
buttressed by something recently done in the US Supreme Court
that kind of allows the circuit courts to flex a
little muscle on these issues.
Speaker 2 (01:57):
Yeah, absolutely so. I think to understand why why discipinion
is so important, why it's such a watershed moment, we
have to go back to the nineteen seventies. In the
nineteen seventies to the US Supreme Court put forward a
very problematic case called Women Versus Kurtzman, and essentially this
case led to many of the problematic rulings that said
(02:17):
you couldn't display the Ten Commandments it led to challenges
to prayer in school. It basically said that the government
couldn't do anything that would excessively entangle itself in religion. Now,
the problem with that preston is that's not how the
framers of our Constitution understood the First Amendment. If you
go back and look, Thomas Jefferson held worship services in
(02:40):
the US Capital, George Washington, John Adams, every president for
the first decades of our country allowed some form of
public expression of faith to take place on US government grounds,
on US property, and that was never seen as a
violation of the Establishment Clause. But starting in the sixties
(03:00):
and seventies, the US Supreme Court really warped the Establishment
Clause case law. And fortunately the US Supreme Court several
years ago, in the Kennedy versus Brimerdon School District case.
You may remember, it's the coach Kennedy case. You're going
to prey on the field before football games. The US
Supreme Court says, look, the Lemen case, that line of
(03:23):
cases that stem from it, that's bad case. Lawns not
how the framers would have understood this. We are going
to overturn Lemen, We're going to reject that precedent, and
going forward, we're going to look at the history and
tradition of our country to understand what the First Amendment
requires or what the First Amendment would prohibit. And so
(03:44):
essentially what the Fifth Circuit did in this case, in
this case involving the Ten Commandments, they just expanded on
that history and tradition test that the Supreme Court first
readopted in the Coach Kennedy case.
Speaker 1 (03:57):
Zach, Is this the first significant case that is buttressed
by the Supreme Court ruling in Kennedy versus Bremerton.
Speaker 2 (04:07):
Well, there's been a line of cases preston, and essentially
what the lower federal courts are having to do, they're
having to go back and address situations that the Supreme
Court had previously said were unconstitutional, you know, under the
limit test, because governments were trying to avoid an excessive
tanglement with religion, because they had to show some secular
(04:27):
purpose to displaying items like the Ten Commandments. That's why
you had really absurd situations where you had city halls
displaying the Ten Commandments or Nativity seeings alongside Snoopy or
Frosty the Snowman. Are these other types of secular displays
because the government said you couldn't have a solely religious expression.
(04:47):
And so again this is one of the first major
lower federal court cases where essentially the lower federal courts
are going back looking at some of those situations and
saying no, no, no, no. At the the framers of our
constitution would have understood this type of display to be
perfectly permissible, Zach.
Speaker 1 (05:07):
I have long argued, because of course I stayed in
a holiday in express and I am a constitutional scholar
as a result of it, I have long argued that
whether it's on our currency coin, that acknowledging a faith
does not establish one. That acknowledging the Ten Commandments does
(05:27):
not establish a church or a religion, It merely acknowledges one.
Is that an argument that is just too simple and
too shallow.
Speaker 2 (05:37):
Well, preston with your holiday in express day. I would
place you on a Court of Appeals over some of
the sitting federal judges right now, because I think that
understanding is much much better. And in fact, if you
go and look at the Fifth Circuit opinion, they say
there are six hallmarks that were typically understood at the
founding to establish in a religion on the work of
(06:00):
Professor Michael McConnell from Stanford University. And unless you're being
coerced to attend church, unless you're being coerced to forcibly
provide tax dollars to a church, things of that nature.
The Fifth Circus said, that's not If those types of
things aren't present, then that that action isn't enough to
establish a religion.
Speaker 1 (06:21):
Those six hallmarks that you note, and I love that,
I love that you dug that out. Are those part
of the ruling, the opinion that was written. And do
they now establish a bit of a more clear cut
precedent for subsequent rulings by courts, maybe even outside the
Fifth Circuit.
Speaker 2 (06:42):
Yes, they do. It provides guideposts for courts to look
at landmarks to help courts untangle essentially what would have
been permitted what would have been prohibited at the founding
at the time our Constitution was adopted. Now, I think
it's important to emphasize, though, press and this is one
Court of Appeals, although other Court of Appeals have issued
(07:03):
similar types of rulings looking at these hallmarks as well.
But this is an issue that could eventually make its
way back up to the US Supreme Court. But I
think what this decision in particular has done has really
made clear that many of those old decisions, those post
limited decisions with that very flawed rationale thatout those decisions
(07:25):
now have to be revisited on a case by case
basis as this new standard they should apply.
Speaker 1 (07:31):
I'm curious are there groups of i'll say activists on
the right side of this that are going to now
start picking at those cases and try to find means
to overturn some of those previous rulings.
Speaker 2 (07:48):
Well, if by activists you mean every day citizens who
want to do things like prey in certain settings or
display signs of their faith, then yes, certainly. And keep
in mind they're way this case game before the court.
The state of Texas, Texas pass SB ten, which required
schools to post the text of the Ten Commandments. And
so essentially it was folks on the left who challenged
(08:11):
that Texas law that caused this case to come before
the Fifth Circuit ultimately, and so you'll see these cases
coming up through a variety of mechanisms. But I think
the takeaway here, Preston, is that public displays of faith,
public eight acknowledgments of faith. As you said, those aren't
prohibited by the Constitution, and the framers, those who adopted
(08:32):
our Constitution, would never have understood it to prohibit those
types of public acknowledgments.
Speaker 1 (08:38):
All right, last question for Zach, and then I'll let
you go. I'm just curious inside the Fifth Circuit you said,
we're talking Texas, Louisiana, and Mississippi. Right, is you mentioned
that this could find its way back to the Supreme Court?
It could? Does it? Is it likely to go the
other way? Will this ruling now impact federal that we
(09:00):
have seen all too often district judges try to expand
their powers beyond their boundaries. Does this provide them a guidepost,
whether they like it or not.
Speaker 2 (09:11):
Well, it certainly provides a guidepost. And I think any
judge or across the country would do well to look
at this opinion for guidance. Because this was an opinion
of the Fifth Circuit only governing those three states that
you mentioned. It will only bind the judges within those circuits.
These judges in Texas, Louisiana, Mississippi, they have to follow
this decision. Judges in other circuits don't have to follow it.
(09:36):
It's not technically binding. But again, they would do well
to look at it for advice and guidance as they
too are confronting these types of issues.
Speaker 1 (09:44):
Very good to visit with you again, Zach. Thanks for
the time this morning.
Speaker 2 (09:48):
Of course thanks for having me on
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