The U.S. Supreme Court should not take up a Texas Ten Commandments case because the state’s incoming Democratic attorney general is unlikely to defend it, outgoing Texas Attorney General Ken Paxton said.
“The newly elected attorney general of Texas (Nathan Johnson), set to assume office in January 2027, has publicly stated that he will not defend the law at issue,” Paxton and other attorneys for the state wrote in an opposing brief filed with the court Nov. 10.
Ken Paxton
“If the court were to grant review, the new attorney general appears to be unwilling to defend Texas law, leaving this court to decide significant Establishment Clause and Free Exercise Clause issues without the benefit of ‘an adversary presentation’ from those responsible for the state’s enforcement of the law,” the letter states.
At issue is Rabbi Nathan v. Alamo Heights Independent School District, a lawsuit filed in July 2025 contesting a new Texas law requiring school districts to place 16-by-20-inch displays of a Protestant version of the Ten Commandments in all public school classrooms.
The measure, Senate Bill 10, was struck down as religiously coercive by a federal judge in August last year but revived in April by the First Circuit U.S. Court of Appeals, which ruled the law does not violate the Establishment Clause of the U.S. Constitution.
In response, the coalition of nonreligious and multifaith families suing to block the law petitioned the Supreme Court in August to decide the case. The high court has yet to announce if it will hear the case.
“If the court were to grant review, the new attorney general appears to be unwilling to defend Texas law.”
The plaintiffs’ petition argues it is coercive for schools to impose religious messages on captive audiences, namely students, and that SB-10 interferes with parents’ rights to direct the religious education of their own children.
Nathan Johnson
They also make the case that SB-10 violates the 1980 Stone v. Graham ruling prohibiting Ten Commandments displays in public schools. Plaintiffs also claim the law contradicts the court’s 2025 affirmation in Mahmoud v. Taylor that schools interfere with parents’ free-exercise rights by interfering in the religious education of their children.
“Texas Senate Bill 10 … contravenes these basic First Amendment tenets. The statute imposes on public-school children, for nearly every hour they are in school, the state’s favored Scripture: The Ten Commandments, drawn from the King James Bible.”
In the state’s new response urging justices not to hear the case, Paxton argues the Stone ruling was essentially invalidated by Kennedy v. Bremerton School District in 2022. That 6-3 decision held that the Establishment Clause must be interpreted through the lens of historical understanding and practices, which the state claims would cover the Ten Commandments.
“SB-10 was intended to ‘restore the history and tradition of the Ten Commandments in our state and our nation’ and to ‘remind students all across Texas of the importance of a fundamental foundation of American and Texas law,’” the brief contends.
The Paxton brief also urges the court to take up a Ten Commandments challenge that targets a specific display rather than one speculating on the possible harm caused by a law: “This case presents a poor vehicle for this court’s review of the issue because the underlying claims are facial, (largely) pre-enforcement challenges, rather than as-applied challenges to a specific display.”
A number of Ten Commandments cases are percolating in state and federal courts in the Southeast. Arkansas’ Ten Commandments law is currently before the Eighth Circuit Court of Appeals after a lower court ruled it to be unconstitutional. Tennessee Gov. Bill Lee signed the state’s Ten Commandments statute into law in July, and Alabama schools are set to install the displays by Jan. 1.