Roake v. Brumley

United States Court of Appeals

for the Fifth Circuit

United States Court of Appeals

Fifth Circuit

FILED

____________

June 20, 2025

No. 24-30706 Lyle W. Cayce

____________ Clerk

Darcy Roake, Reverend, on behalf themselves and on behalf

of their minor children, real party in interest A.V., real party

in interest S.V.; Adrian Van Young, on behalf of themselves and

on behalf of their minor children, real party in interest A.V., real

party in interest S.V.; Mamie Broadhurst, Reverend, on

behalf of themselves and on behalf of their minor child, real party in

interest N.W.; Richard Williams, Reverend, on behalf of

themselves and on behalf of their minor child, real party in interest

N.W.; Jeff Sims, Reverend, on behalf of himself and on behalf of his

minor children, real party in interest A.S., real party in

interest C.S. 1, real party in interest C.S. 2; Jennifer

Harding, on behalf of themselves and on behalf of their minor child, real

party in interest A.O.; Benjamin Owens, on behalf of themselves

and on behalf of their minor child, real party in interest A.O.;

David Hawley, on behalf of themselves and on behalf of their minor children

real party in interest A.H., real party in interest L.H.;

Erin Hawley, on behalf of themselves and on behalf of their minor children,

real party in interest A.H, real party in interest L.H.;

Dustin McCrory, on behalf of themselves and on behalf of his minor

children, real party in interest E.M.; real party in

interest P.M., real party in interest L.M.; Gary

Sernovitz, on behalf of themselves and on behalf of their minor child, real

party in interest T.S.; Molly Pulda, on behalf of themselves and

on behalf of their minor child. real party in interest T.S.;

Christy Alkire, on behalf of herself and on hehalf of her minor child,

real party in interest L.A.; Joshua Herlands, on behalf of

himself and on behalf of his minor children, real party in interest

E.H., real party in interest J.H.,

Plaintiffs—Appellees,

versus

Cade Brumley, in his official capacity as the Louisiana State

Superintendent of Education; Conrad Appel, in his official capacity as a

member of the Louisiana State Board of Elementary and Secondary Education

(LSBESE); Judy Armstrong, in her official capacity as a member of the

LSBESE; Kevin Berken, in his official capacity as a member of the

LSBESE; Preston Castille, in his official capacity as a member of

LSBESE; Simone Champagne, in her official capacity as a member of the

LSBESE; Sharon Latten-Clark, in her official capacity as a member

of the LSBESE; Lance Harris, in his official capacity as a member of

LSBESE; Paul Hollis, Louisiana State Board of

Elementary and Secondary Education; Sandy Holloway,

in her official capacity as a member of the LSBESE; Stacey Melerine, in

her official capacity as a member of the LSBESE; Ronnie Morris, in his

official capacity as a member of the LSBESE; East Baton Rouge

Parish School Board; Livingston Parish School Board;

Vernon Parish School Board; St. Tammany Parish

School Board,

Defendants—Appellants.

______________________________

Appeal from the United States District Court

for the Middle District of Louisiana

USDC No. 3:24-CV-517

______________________________

Before Dennis, Haynes, and Ramirez, Circuit Judges.

Irma Carrillo Ramirez, Circuit Judge:

Parents and students challenge a statute requiring public schools to

permanently display the Ten Commandments in every classroom in

Louisiana. The district court found the statute facially unconstitutional and

preliminarily enjoined its enforcement. We AFFIRM.

I

A

The Louisiana governor signed House Bill 71, Act. No. 676 (H.B. 71)

into law in June 2024. In pertinent part, it provides:

(1) No later than January 1, 2025, each public school governing

authority shall display the Ten Commandments in each

classroom in each school under its jurisdiction. The nature of

the display shall be determined by each governing authority

with a minimum requirement that the Ten Commandments

shall be displayed on a poster or framed document that is at

least eleven inches by fourteen inches. The text of the Ten

Commandments shall be the central focus of the poster or

framed document and shall be printed in a large, easily readable

font.

(2) The text shall read as follows:

“The Ten Commandments

I AM the LORD thy God.

Thou shalt have no other gods before me.

Thou shalt not make to thyself any graven images.

Thou shalt not take the Name of the Lord thy God in vain.

Remember the Sabbath day, to keep it holy.

Honor thy father and thy mother, that thy days may be long

upon the land which the Lord thy God giveth thee.

Thou shalt not kill.

Thou shalt not commit adultery.

Thou shalt not steal.

Thou shalt not bear false witness against thy neighbor.

Thou shalt not covet thy neighbor’s house.

Thou shalt not covet thy neighbor’s wife, nor his manservant,

nor his maidservant, nor his cattle, nor anything that is thy

neighbor’s.”

La. R.S. § 17:2124(B)(1)–(B)(2).

The Ten Commandments 1 must be displayed with a “context

statement” about the “History of the Ten Commandments in American

Public Education,” 2 and “may” be displayed with “the Mayflower

Compact, the Declaration of Independence, and the Northwest Ordinance.”

Id. § 17:2124(B)(3)–(B)(4). Public school governing authorities are not

required to pay for the displays. Instead, they can “accept donated funds to

purchase the displays” or “accept donated displays.” Id. § 17:2124(B)(5).

H.B. 71 tasks the Louisiana Board of Elementary and Secondary Education

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1

Plaintiffs’ complaint alleges that H.B. 71 adopts a Protestant version of the Ten

Commandments. Their expert agreed: “[I]t is my expert opinion that the version of the

Ten Commandments adopted under H.B. 71 is Protestant and not nondenominational.”

Louisiana offered no rebuttal.

2

The “context statement” reads:

The Ten Commandments were a prominent part of American

public education for almost three centuries. Around the year 1688, The

New England Primer became the first published American textbook and

was the equivalent of a first grade reader. The New England Primer was used

in public schools throughout the United States for more than one hundred

fifty years to teach Americans to read and contained more than forty

questions about the Ten Commandments.

The Ten Commandments were also included in public school

textbooks published by educator William McGuffey, a noted university

president and professor. A version of his famous McGuffey Readers was

written in the early 1800s and became one of the most popular textbooks

in the history of American education, selling more than one hundred

million copies. Copies of the McGuffey Readers are still available today.

The Ten Commandments also appeared in textbooks published by

Noah Webster in which were widely used in American public schools along

with America’s first comprehensive dictionary that Webster also

published. His textbook, The American Spelling Book, contained the Ten

Commandments and sold more than one hundred million copies for use by

public school children all across the nation and was still available for use in

American public schools in the year 1975.

Id. § 17:2124(B)(3).

(BESE) with adopting rules and regulations to ensure the statute’s “proper

implementation.” Id. § 17:2124(B)(6)(a). H.B. 71 also applies to

postsecondary institutions. See id. § 17:2124(C)(1).

H.B. 71 includes several legislative findings and a declaration of

legislative intent, which, in relevant part, provide:

(4) Recognizing the historical role of the Ten Commandments

accords with our nation’s history and faithfully reflects the

understanding of the founders of our nation with respect to the

necessity of civic morality to a functional self-government. . . .

(5) Including the Ten Commandments in the education of our

children is part of our state and national history, culture, and

tradition.

(6) The text of the Ten Commandments set forth in Subsection

B of this Section is identical to the text of the Ten

Commandments monument that was upheld by the Supreme

Court . . . in Van Orden v. Perry, 545 U.S. 677, 688 (2005).

....

(9) It is the Legislature’s intent to apply the decision set forth

by the Supreme Court . . . in Van Orden v. Perry, 545 U.S. 677

(2005), to continue the rich tradition and ensure that the

students in our public schools may understand and appreciate

the foundational documents of our state and national

government.

Id. § 17:2124(A)(4)–(A)(9).

B

On June 24, 2024, a group of multi-faith and non-religious Louisiana

parents 3 brought suit on their own behalf (Parents) and on behalf of their

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3

Plaintiffs subscribe to a wide range of religious and non-religious views including

Unitarian Universalism, Judaism, Reform Judaism, Presbyterian Christianity, atheism,

non-religiousness, and agnostic atheism. Plaintiffs allege that the Protestant version of the

minor children (Students) (collectively, Plaintiffs), challenging the

constitutionality of H.B. 71 under the Establishment Clause and Free

Exercise Clause of the First Amendment. They sued Cade Brumley, who is

the Louisiana State Superintendent of Education (Superintendent), several

BESE members in their official capacities, and five parish school boards

(collectively, Louisiana). 4 After filing their complaint, Plaintiffs moved for

preliminary injunctive relief, and proffered the expert report of Dr. Steven K.

Green, a law professor and constitutional and religious historian. Dr. Green’s

report concluded that there is no evidence of a longstanding historical

tradition of permanently displaying the Ten Commandments in public school

classrooms.

Louisiana moved to exclude Dr. Green’s expert testimony, moved to

dismiss the complaint under Federal Rules of Civil Procedure 12(b)(1) and

12(b)(6), opposed the preliminary injunction, and alternatively moved to stay

the injunction pending appeal. It argued that Plaintiffs’ claims were unripe,

Plaintiffs lacked standing, and the Superintendent and the BESE-member

defendants were entitled to sovereign immunity, and it challenged the merits

of Plaintiffs’ First Amendment claims.

_____________________

Ten Commandments set out in H.B. 71 differs from the version observed by most adherents

of the Catholic and Jewish faiths. They further allege that many other religions do not

regard the commandments as part of their belief system at all.

4

Plaintiffs sued East Baton Rouge Parish School Board, Livingston Parish School

Board, Vernon Parish School Board, St. Tammany Parish School Board, and Orleans Parish

School Board. Because Orleans Parish School Board is not a party to this appeal and

independently moved to dismiss the complaint and opposed the preliminary injunction

before the district court, “Louisiana” refers to all the defendants, excluding the Orleans

Parish School Board. We held the Orleans Parish School Board’s appeal in abeyance

pending our resolution of this appeal. See Abeyance Order, Orleans Par. Sch. Bd. v. Brumley,

No. 24-30779 (5th Cir. Dec. 19, 2024), Dkt. No. 11.

After a hearing, the district court denied Louisiana’s motions and

issued a preliminary injunction. The preliminary injunction prohibited

Louisiana from enforcing H.B. 71. 5 The court also ordered the

Superintendent and the BESE-member defendants to provide notice of its

ruling to all Louisiana public schools.

Louisiana appeals the entry of a preliminary injunction and the denial

of its motion to dismiss and motion to exclude Plaintiffs’ expert testimony.

II

This court has jurisdiction to review “final decisions” under

28 U.S.C. § 1291 and interlocutory orders under 28 U.S.C. § 1292(a)(1). A

preliminary injunction is an appealable interlocutory order. See 28 U.S.C.

§ 1292(a)(1). Ordinarily, the denial of a motion to dismiss is not an appealable

final decision under § 1291 as it is “neither a ruling on the merits nor an

effective termination of all or any discrete part of the district court

proceedings.” Save the Bay, Inc. v. U.S. Army, 639 F.2d 1100, 1103 (5th Cir.

1981) (per curiam). “But to the extent the underpinnings of [Louisiana’s]

motion [to dismiss] are inextricably intertwined with the district court’s

subsequent rulings challenged on appeal, . . . we have jurisdiction to address

those issues.” Jiao v. Xu, 28 F.4th 591, 596 (5th Cir. 2022).

Louisiana opposed the preliminary injunction on the same grounds

asserted in its motion to dismiss, and the district court ruled on the motions

simultaneously. Accordingly, we have jurisdiction over those rulings.

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5

Because H.B. 71 would have gone into effect on January 1, 2025, La. R.S.

§ 17:2124(B)(1), if the preliminary injunction were vacated, the statute would go into effect

immediately.

III

Louisiana challenges the denial of its motion to dismiss for lack of

subject matter jurisdiction, contending that the district court lacked subject

matter jurisdiction based on ripeness, standing, and sovereign immunity.

We review the denial of a motion to dismiss for lack of subject matter

jurisdiction de novo. Ramming v. United States, 281 F.3d 158, 161 (5th Cir.

2001) (per curiam). Plaintiffs, as “the party asserting jurisdiction,” bear the

burden of proof. Id.

A

“A court should dismiss a case for lack of ‘ripeness’ when the case is

abstract or hypothetical.” Orix Credit All., Inc. v. Wolfe, 212 F.3d 891, 895

(5th Cir. 2000) (quoting New Orleans Pub. Serv., Inc. v. Council of New

Orleans, 833 F.2d 583, 586–87 (5th Cir. 1987)). To assess ripeness, courts

evaluate “(1) ‘the fitness of the issues for judicial decision[,]’ and (2) ‘the

hardship to the parties of withholding court consideration.’” Braidwood

Mgmt., Inc. v. Equal Emp. Opportunity Comm’n, 70 F.4th 914, 930 (5th Cir.

2023) (quoting Abbott Lab’ys v. Gardner, 387 U.S. 136, 149 (1967), abrogated

on other grounds by Califano v. Sanders, 430 U.S. 99 (1977)).

1

On the first prong, “a claim is ‘fit for judicial decision’ if it presents a

pure question of law that needs no further factual development.” Braidwood

Mgmt., 70 F.4th at 930 (citing New Orleans Pub. Serv., 833 F.2d at 586–87).

This means that a claim is ripe so long as it is not “contingent [on] future

events that may not occur as anticipated, or indeed may not occur at all.”

Book People, Inc. v. Wong, 91 F.4th 318, 333 (5th Cir. 2024) (alteration in

original) (quoting Braidwood Mgmt., 70 F.4th at 930).

Louisiana is wrong that further factual development is needed in this

case. Citing Staley v. Harris County, 485 F.3d 305 (5th Cir. 2007) (en banc),

Louisiana argues that Plaintiffs’ claims are not fit for judicial decision because

Plaintiffs have not yet encountered an H.B. 71 poster—they do not know

what any given display will look like, what context may accompany the Ten

Commandments, or where in any specific classroom a display may be placed.

Staley provides no support.

Staley concerned the constitutionality of a monument displaying a

Christian Bible at a county courthouse in Texas. 485 F.3d at 307. A panel of

this court held that displaying the monument violated the Establishment

Clause, but days before the case would be reheard en banc, the courthouse

placed the monument in storage. Id. Our en banc court held that “any dispute

over a probable redisplay of the . . . monument [was] not ripe because there

[were] no facts before [it] to determine whether such a redisplay might violate

the Establishment Clause.” Id. at 309. “In the absence of this evidence,” the

en banc court determined it was “unable to conduct the fact-intensive and

context-specific analysis” required in Establishment Clause jurisprudence.

Id.

Plaintiffs’ lawsuit targets H.B. 71’s minimum requirements, which

reflect “when, where, or under what circumstance[s]” the Ten

Commandments are to be displayed. Id. at 307.

 What will be displayed? “The text of the Ten Commandments”—the

exact Protestant version of which is provided by the statute, La. R.S.

§ 17:2124(B)(1)–(B)(2);

 How will it be displayed? As “the central focus” of a “poster or framed

document that is at least eleven inches by fourteen inches,” and

“printed in a large, easily readable font,” along with a “context

statement,” also provided by the statute, id. § 17:2124(B)(1), (B)(3)

(emphases added);

 When will it be displayed? “No later than January 1, 2025,” and for the

duration of the entire schoolyear, id. § 17:2124(B)(1);

 Where will it be displayed? In every Louisiana public school classroom,

regardless of class subject matter, student age, or student grade,

somewhere that it can be seen by students, 6 id;

 Why will it be displayed? Purportedly for historical reasons, see id.

§ 17:2124(A)(9).

This case is not like Staley where “no decision ha[d] been made

regarding any aspect of the future display of the [stored] monument.” 485

F.3d at 309 (emphases added). The text of H.B. 71 provides sufficient

information for a fact-intensive and context-specific analysis. Plaintiffs’

claims are fit for judicial decision; the first ripeness prong is satisfied.

2

On the second ripeness prong, Plaintiffs have shown hardship should

we withhold court consideration.

“The Supreme Court has found hardship to inhere in legal harms,

such as the harmful creation of legal rights or obligations; practical harms on

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6

Notably, Louisiana does not suggest that there is a possibility that the displays

may not be seen by students. During oral argument, Louisiana argued that “there is a

fundamental difference between, for example, an 11-inch by 14-inch poster in the back

corner of a classroom, and an 11-foot by 14-foot poster in the front wall of the classroom.”

To “display” something means “to place or spread (something) for people to see.”

Display, Merriam-Webster Dictionary, https://perma.cc/955S-KS6N. Because

H.B. 71 requires that the Ten Commandments be “display[ed]” in each classroom and “be

printed in a large, easily readable font,” La. R.S. § 17:2124(B)(1), the statutory text

dictates that the posters be placed within students’ view.

the interests advanced by the party seeking relief; and the harm of being

‘force[d] . . . to modify [one’s] behavior in order to avoid future adverse

consequences.’” Choice Inc. of Tex. v. Greenstein, 691 F.3d 710, 715 (5th Cir.

2012) (alterations in original) (quoting Texas v. United States, 497 F.3d 491,

499 (5th Cir. 2007)). Whether the challenged statute or regulation “inflicts

significant practical harm upon the interests that [Plaintiffs] advance[]” is

“an important consideration.” Ohio Forestry Ass’n v. Sierra Club, 523 U.S.

726, 733–34 (1998).

Here, Plaintiffs allege that the displays violate their rights under the

First Amendment’s Establishment Clause. “The loss of First Amendment

freedoms, for even minimal periods of time, unquestionably constitutes

irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976). Absent judicial

intervention, Louisiana will implement H.B. 71. As a result, Students will be

subjected to displays that accord with the statute’s minimum display

requirements, in every classroom during every school day. H.B. 71 therefore

inflicts significant practical harm on Plaintiffs’ First Amendment rights. See

id; Espinoza v. Mont. Dep’t of Revenue, 591 U.S. 464, 486 (2020) (recognizing

“the rights of parents to direct ‘the religious upbringing’ of their children”

(quoting Wisconsin v. Yoder, 406 U.S. 205, 213–14 (1972))). Plaintiffs have

demonstrated that there is hardship in withholding consideration sufficient

to “justify judicial intervention.” See Pearson v. Holder, 624 F.3d 683, 684

(5th Cir. 2010) (“[T]he ripeness inquiry focuses on whether an injury that

has not yet occurred is sufficiently likely to happen to justify judicial

intervention.” (alteration in original) (citation omitted)); Braidwood Mgmt.,

70 F.4th at 931–32 (“[L]itigants are entitled to relief where they ‘“remain

under a constant threat” that government officials will use their power’ to

enforce the law against them. Therefore, plaintiffs’ claims are ripe.”

(footnote omitted)).

Plaintiffs’ claims are ripe; the district court did not err.

B

Louisiana next challenges whether Plaintiffs have standing to press

their Establishment Clause claim, focusing on the injury-in-fact element.

To establish Article III standing, a plaintiff must show “an injury in

fact” that is “fairly traceable to the challenged action” and “redress[able] by

a favorable decision.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992)

(citation modified). The injury-in-fact element “ensure[s] that the plaintiff

has a ‘personal stake in the outcome of the controversy.’” Susan B. Anthony

List v. Driehaus, 573 U.S. 149, 158 (2014) (quoting Warth v. Seldin, 422 U.S.

490, 498 (1975)). Accordingly, “an injury must be ‘concrete, particularized,

and actual or imminent.’” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409

(2013) (citation omitted). 7

1

Louisiana’s argument that Plaintiffs lack standing to press their

Establishment Clause claims is two-fold: First, it argues that in cases

involving religious displays, allegations of future encounters are insufficient

for purposes of establishing standing. Second, citing non-binding, minority-

view Supreme Court opinions, it contends that the “offended observer

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7

Although Louisiana only challenges this element, we must still ensure the other

standing requirements are satisfied. See Lujan, 504 U.S. at 559 (“[The Constitution] limits

the jurisdiction of federal courts to ‘Cases’ and ‘Controversies.’”). The district court

found that Plaintiffs’ alleged injuries were traceable to the action of each defendant because

the BESE-member defendants are required to “adopt rules and regulations . . . to ensure

the proper implementation” of H.B. 71, La. R.S. § 17:2124(B)(6)(a), and the

Superintendent is required to “[i]mplement the policies and programs of the board and the

laws affecting schools under the jurisdiction of the board,” id. § 17:22(3). The district court

found redressability because “it is highly likely” that Plaintiffs’ alleged injuries would be

remedied by an injunction prohibiting the display of the Ten Commandments as required

by H.B. 71 and implementation of rules regarding the displays. We find no error.

standing” doctrine is “profoundly wrong” and urges that we overturn our

“offended observer” precedent. We address each argument in turn.

a

i

Parts of the Ten Commandments include basic principles regarding

criminal conduct that are part of a civilized society, such as the prohibition

against murder. However, they come from religious texts and include

commandments that have clear religious import, such as requiring worship

of one God and keeping the Sabbath holy. Their display in public school

classrooms, as required by H.B. 71, qualifies as a religious display.

Unwanted exposure to government-sponsored religious displays and

exercises can, under certain circumstances, violate a plaintiff’s First

Amendment rights. See, e.g., Lynch v. Donnelly, 465 U.S. 668 (1984)

(examining the constitutionality of a Nativity scene displayed in a shopping

center during the holiday season); County of Allegheny v. Am. C.L. Union

Greater Pittsburgh Chapter, 492 U.S. 573, 598–602 (1989) (permanently

enjoining a county from displaying a Nativity scene in the county courthouse,

but permitting a menorah to be displayed outside of a county building),

abrogated on other grounds by Town of Greece v. Galloway, 572 U.S. 565 (2014);

Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000) (holding

unconstitutional student-led and student-initiated prayer announced over

the speaker system before football games). Because “government speech

must comport with the Establishment Clause,” Pleasant Grove City v.

Summum, 555 U.S. 460, 468 (2009), “Establishment Clause injury can occur

when a person encounters the Government’s endorsement of religion.”

Moore v. Bryant, 853 F.3d 245, 250 (5th Cir. 2017); see e.g., Murray v. City of

Austin, 947 F.2d 147, 151–52 (5th Cir. 1991) (finding standing to challenge

religious insignia where plaintiff encountered insignia on utility bill); Freedom

From Religion Found., Inc. v. Mack, 49 F.4th 941, 949–50 (5th Cir. 2022)

(finding standing where plaintiff had an “ongoing confrontation” with prayer

ceremony in courtroom).

Confrontation with a religious display or exercise satisfies the injury-

in-fact requirement of standing only if the plaintiff can “identify [a] personal

injury suffered by [the plaintiff] as a consequence of the alleged constitutional

error.” Valley Forge Christian Coll. v. Ams. United for Separation of Church &

State, Inc., 454 U.S. 464, 485 (1982); see Barber v. Bryant, 860 F.3d 345, 353

(5th Cir. 2017) (“A plaintiff has standing to challenge a religious display

where his stigmatic injury results from a ‘personal[] confront[ation]’ with the

display.” (alterations in original) (citation omitted)). This means that

alleging a confrontation, alone, is insufficient. Naked allegations that the

Constitution has been violated are also insufficient. Valley Forge, 454 U.S. at

485–86. Rather, in Establishment Clause cases, the injury is being

“personally exposed” to a government’s religious message “with which [a

plaintiff] disagrees, or . . . has had to assume a burden to avoid.” Carl H.

Esbeck, Unwanted Exposure to Religious Expression by Government: Standing &

the Establishment Clause, 7 Charleston L. Rev. 607, 633 (2013); id. at

637 (“A conflict between belief and message is the basis of adversity between

plaintiff and her government where the basic problem is government taking

sides on a religious question.”); see e.g., Sch. Dist. of Abington Twp. v.

Schempp, 374 U.S. 203, 211–12, 224 n.9 (1963) (atheist family and Unitarian

family had standing to challenge statute requiring that the Holy Bible and

Lord’s Prayer be read at the start of school day); Lee v. Weisman, 505 U.S.

577, 599 (1992) (“The sole question presented is whether [under the

Establishment Clause] a religious exercise may be conducted at a graduation

ceremony in circumstances where . . . young graduates who object are

induced to conform.”). And in the public school context, a government’s

injurious religious message “carr[ies] a particular risk of indirect coercion.”

Lee, 505 U.S. at 592; Sch. Dist. of City of Grand Rapids v. Ball, 473 U.S. 373,

383 (1985) (discussing “the sensitive relationship between government and

religion in the education of our children” and noting that “[t]he

government’s activities in this area can have a magnified impact on

impressionable young minds”), overruled on other grounds by Agostini v. Felton,

521 U.S. 203 (1997).

ii

“An allegation of future injury may suffice [to satisfy Article III] if

the threatened injury is certainly impending, or there is a substantial risk that

the harm will occur.” Driehaus, 573 U.S. at 158 (internal quotation marks and

citation omitted); accord. Babbitt v. United Farm Workers Nat’l. Union, 442

U.S. 289, 298 (1979) (“But ‘[o]ne does not have to await the consummation

of threatened injury to obtain preventive relief. If the injury is certainly

impending, that is enough.’” (alteration in original) (quoting Pennsylvania v.

West Virginia, 262 U.S. 553, 593 (1923), aff’d, 263 U.S. 350 (1923))); Clapper,

568 U.S. at 409 (“[W]e have repeatedly reiterated that ‘threatened injury

must be certainly impending to constitute injury in fact . . . .’”); Dep’t of Com.

v. New York, 588 U.S. 752, 767 (2019) (holding States had standing to bring

action based on “primarily future injuries”); FDA v. All. for Hippocratic Med.,

602 U.S. 367, 381 (2024) (“Moreover, the injury must be actual or

imminent . . . meaning that the injury must have already occurred or be likely

to occur soon.” (emphasis added)). So, too, can allegations of future

confrontations satisfy the injury-in-fact element of standing. This is

particularly true when a plaintiff seeks prospective relief. See All. for

Hippocratic Med., 602 U.S. at 381.

In School District of Abington Township v. Schempp, the Supreme Court

invalidated two statutes requiring that Bible verses be read to students over

the school’s intercommunications system at the start of every school day. 374

U.S. 203. Students were “asked to stand and join in repeating the prayer in

unison,” but could excuse themselves either by stepping out of the classroom

or simply not participating upon a parent’s written request. Id. at 207.

Finding that the plaintiffs had standing to challenge the statutes under the

Establishment Clause, the Supreme Court said:

It goes without saying that the laws and practices involved here

can be challenged only by persons having standing to

complain. . . . The parties here are school children and their

parents, who are directly affected by the laws and practices

against which their complaints are directed. These interests

surely suffice to give the parties standing to complain.

Id. at 224 n.9 (citations omitted). The Court explained that “[t]he plaintiffs

in Schempp had standing, not [merely] because their complaint rested on the

Establishment Clause . . . but because impressionable schoolchildren were

subjected to unwelcome religious exercises or were forced to assume special

burdens to avoid them.” Valley Forge, 454 U.S. at 486 n.22; see also Lee, 505

U.S. at 584 (finding a “live and justiciable controversy” based on an alleged

future injury where the plaintiff challenging a policy permitting clergy

members to pray during middle and high school graduations was enrolled at

a school where it was “likely, if not certain, that an invocation and

benediction [would] be conducted at . . . graduation”).

We have previously held that a plaintiff need not wait for “actual

implementation of [a] statute” or an “actual violation[] of his rights” to seek

relief. Ingebretsen v. Jackson Pub. Sch. Dist., 88 F.3d 274, 278 (5th Cir. 1996).

Ingebretsen involved a pre-implementation challenge to a Mississippi statute

permitting “student-initiated voluntary prayer” during school-related

student events under the Establishment Clause. Id. at 277–78 (citation

omitted). Rejecting Mississippi’s argument that the plaintiff lacked standing

because the statute had not yet been implemented, we held that “[t]here

[was] no need for [the plaintiff] to wait for actual implementation of the

statute and actual violations of his rights under the First Amendment where

the statute ‘makes inappropriate government involvement in religious affairs

inevitable.’” Id. (citing Karen B. v. Treen, 653 F.2d 897, 902 (5th Cir. 1981),

aff’d, 455 U.S. 913 (1982)); see also Barber, 860 F.3d at 357 (“Future injuries

can provide the basis for standing, but they ‘must be certainly impending to

constitute injury in fact[.]’”). 8

Louisiana argues that Staley and Doe v. Tangipahoa Parish School

Board, 494 F.3d 494 (5th Cir. 2007) (en banc), overturned Ingebretsen, so

Plaintiffs must supply proof of an actual encounter with an H.B. 71 display to

establish standing. At the outset, we note that Louisiana does not grapple

with Schempp—a future injury case where the Supreme Court found standing

to press an Establishment Clause claim. Nevertheless, Staley and Doe are

both distinguishable and neither decision purported to overturn Ingebretsen,

so Ingebretsen remains good law.

Staley addressed mootness and ripeness—not standing. See 485 F.3d

at 309. Doe involved a challenge to a school board’s practice of opening its

meetings with a prayer. Doe v. Tangipahoa Par. Sch. Bd., 473 F.3d 188, 191

(5th Cir. 2006), rev’d en banc, 494 F.3d 494 (5th Cir. 2007). We held that the

plaintiff, whose sons attended schools under the board’s jurisdiction, lacked

_____________________

8

Louisiana cites Barber for the proposition that, in religious display cases, this

court has “required an encounter with the offending item or action to confer standing.”

See 860 F.3d at 353. But the quoted language cannot be divorced from its accompanying

context. Barber involved a Mississippi statute prohibiting any discriminatory action against

persons who acted in accordance with certain beliefs listed in a subsection of the bill. Id. at

350–51. This court held that the plaintiffs lacked standing because “[t]he beliefs listed in

that section exist only in the statute itself.” Id. at 354. We even distinguished the plaintiffs’

injuries from those alleged in religious display cases, concluding that “religious-display

cases [did] not provide a basis for standing to challenge the endorsement of beliefs that exist

only in the text of a statute.” Id.

standing to challenge the invocations because even after a trial on the merits,

there was insufficient proof in the record that he or his sons had been exposed

to the invocations. 494 F.3d at 497. Doe was not a pre-implementation facial

challenge, and the issue was not whether the plaintiffs would be injured by the

prayers if they were to occur in the future. Instead, the allegedly injurious

invocations had occurred “since at least 1973,” 473 F.3d at 192, but the

plaintiffs had not proven that they had ever witnessed them or would in the

future. See 494 F.3d at 497–98.

The precedents of the Supreme Court and this court establish that, in

an Establishment Clause case, a plaintiff can generally satisfy the injury-in-

fact element of standing when he experiences—or certainly will

experience—unwanted exposure to government-sponsored religious

displays or exercises in the course of his regular activities. See Schempp, 374

U.S. at 224 n.9; Lee, 505 U.S. at 584; Ingebretsen, 88 F.3d at 277–78.

iii

Here, H.B. 71 requires that the Ten Commandments be permanently

displayed in every classroom of every public elementary, middle, and high

school in Louisiana. Under Louisiana’s compulsory education laws, students

must attend school for at least 177 days per year, La. R.S. § 17:154.1(A)(1),

and legal guardians must “assure the attendance of the[ir] child[ren] in

regularly assigned classes during regular school hours” or be fined or

imprisoned, id. § 17:221(A)(1)(b)–(A)(1)(c). If H.B. 71 goes into effect, 9

impressionable Students will confront a display of the Ten Commandments

for nearly every hour of every school day of their public school education in

the course of their regular activities. Plaintiffs allege that H.B. 71’s version of

_____________________

9

Absent a preliminary injunction, H.B. 71 would currently be in effect. See

id. § 17:2124(B)(1).

the Ten Commandments is contrary to the religious and non-religious beliefs

they hold. H.B. 71 does not provide a means for students to avoid the displays

or avoid unwanted exposure to a government-sponsored religious display.

Students have shown standing. See Schempp, 374 U.S. at 211–12, 224 n.9; Lee,

505 U.S. at 599.

Parents have likewise pleaded an injury-in-fact sufficient to confer

standing to assert their Establishment Clause claims. Because of Students’

regular exposure with the H.B. 71 displays, Parents are “directly affected”

by the challenged statute. Schempp, 374 U.S. at 224 n.9; see Fleischfresser v.

Dirs. of Sch. Dist. 200, 15 F.3d 680, 684 (7th Cir. 1994) (holding that parents

have standing to allege an Establishment Clause claim where an

“impermissible establishment of religion might inhibit their right to direct

the religious training of their children”); Steele v. Van Buren Pub. Sch. Dist.,

845 F.2d 1492, 1495 (8th Cir. 1988) (holding plaintiff’s claim remained in

controversy because she had a “parental interest in having her children

educated in a public school free of religious activities”).

We find no error in the district court’s ruling that Plaintiffs

demonstrated standing to assert their Establishment Clause claims.

b

Louisiana contends that Plaintiffs cannot establish “offended

observer standing,” as characterized by non-binding, minority-view

Supreme Court opinions. It nevertheless urges us to reconsider our

“offended observer” precedents in light of Kennedy v. Bremerton School

District, 597 U.S. 507 (2022), which overruled the test announced in Lemon

v. Kurtzman, 403 U.S. 602 (1971), for assessing Establishment Clause

claims,10 and because the doctrine is “profoundly wrong.” 11 Louisiana’s

arguments fail at the threshold.

i

The Supreme Court has never expressly and formally recognized

“offended observer standing” in a majority opinion; this term appears only

in non-binding minority opinions. See City of Ocala v. Rojas, 143 S. Ct. 764

(2023) (Mem.) (Gorsuch, J., statement regarding denial of certiorari)

(Thomas, J., dissenting from denial of certiorari); Am. Legion v. Am.

Humanist Ass’n, 588 U.S. 29, 79–89 (2019) (Gorsuch, J., concurring in

the judgment); Espinoza, 591 U.S. at 495 (Thomas, J., concurring). In a

concurrence, one of the Supreme Court’s members has stated that under the

“offended observer” standing theory, “offense alone qualifies as a ‘concrete

and particularized’ injury sufficient to confer standing” and it therefore has

no basis in law. Am. Legion, 588 U.S. at 80 (Gorsuch, J., concurring in the

judgment) (emphasis added); 12 see also City of Ocala, 143 S. Ct. at 767

_____________________

10

In Kennedy, the Supreme Court declared that it had “long ago abandoned Lemon

and its endorsement test offshoot.” See 597 U.S. at 534.

11

See Post, at 1–4 (Dennis, J., concurring).

12

The American Legion concurrence argues,

Lower courts invented offended observer standing for Establishment

Clause cases in the 1970s in response to . . . Lemon v. Kurtzman, 403 U.S.

602 (1971). Lemon held that whether governmental action violates the

Establishment Clause depends on its (1) purpose, (2) effect, and

(3) potential to “excessive[ly] . . . entangl[e]” church and state, a standard

[the] Court came to understand as prohibiting the government from doing

anything that a “reasonable observer” might perceive as “endorsing”

religion. And lower courts reasoned that, if the Establishment Clause

forbids anything a reasonable observer would view as an endorsement of

religion, then such an observer must be able to sue. Here alone, lower

(Thomas, J., dissenting from denial of certiorari) (“In every other area,

we have been clear that ‘offense alone [is] insufficient to convey standing.’”

(citation omitted)).

Plaintiffs allege more than “offense alone,” however. As noted, if

H.B. 71 goes into effect, Students will be subjected to unwelcome displays of

the Ten Commandments for the entirety of their public school education.

There is no opt-out option. Plaintiffs are not mere bystanders who have

“fail[ed] to identify any personal injury suffered by them as a consequence of

the alleged constitutional error, other than the psychological consequence

presumably produced by observation of conduct with which [they]

disagree[].” Valley Forge, 454 U.S. at 485; see id. at 486 n.22 (“The plaintiffs

in Schempp had standing . . . because impressionable schoolchildren were

subjected to unwelcome religious exercises or were forced to assume special

burdens to avoid them.”). Nor are Plaintiffs asking the courts to redress

“‘generalized grievances’ about the conduct of Government.” See Am.

Legion, 588 U.S. at 80 (Gorsuch, J., concurring in the judgment) (citation

omitted) (opining that “[o]ffended observer standing is deeply inconsistent”

with the rule that “‘generalized grievances’ . . . are insufficient to confer

standing”). They allege that Students “will be pressured to observe,

meditate on, venerate, and follow this scripture and to suppress expression

of their own religious beliefs and backgrounds at school.” Indeed, the

Supreme Court has recognized that “there are heightened concerns with

protecting freedom of conscience from subtle coercive pressure in the

elementary and secondary public schools.” Lee, 505 U.S. at 592.

_____________________

courts concluded . . . an observer’s offense must “suffice to make an

Establishment Clause claim justiciable.”

Id. at 84 (second alteration in original) (citations and quotation marks omitted).

Plaintiffs are more than mere “offended observers.” Students and

Parents will be “directly affected” by H.B. 71; this is sufficient to confer

standing. Schempp, 374 U.S. at 224 n.9.

ii

Louisiana notably does not specify the precedent it asks us to

reconsider based on Kennedy.

Under our court’s rule of orderliness, 13 Kennedy is not an intervening

change in relevant law, because it did not examine or even mention standing.

In that case, a school district suspended and later fired a high school football

coach for praying on the school football field after games. The coach sued the

district under the Free Exercise and Free Speech Clauses. 597 U.S. at 519–

23. The school district invoked the Establishment Clause as a defense to the

coach’s Free Exercise and Free Speech claims, arguing that his Free Exercise

rights were “in ‘direct tension’” with its obligations under the Establishment

Clause pursuant to “Lemon and its progeny.” Id. at 532, 534. The Supreme

Court rejected the district’s argument, set aside Lemon, and clarified that

“the Establishment Clause must be interpreted by ‘reference to historical

practices and understandings.’” Id. at 535 (quotation marks omitted).

Because it was primarily a Free Exercise Clause and Free Speech Clause

challenge, Kennedy does not provide an appropriate basis upon which we may

reconsider our Establishment Clause standing caselaw. See Collins v. Dep’t of

the Treasury, 83 F.4th 970, 985 (5th Cir. 2023) (concluding that a Supreme

Court decision was not an intervening change in Appropriations Clause law

“because it was not an Appropriations Clause case”). And “[a]s middle-

_____________________

13

“It is a well-settled Fifth Circuit rule of orderliness that one panel of our court

may not overturn another panel’s decision, absent an intervening change in the law, such

as by . . . the Supreme Court, or our en banc court.” Jacobs v. Nat’l Drug Intel. Ctr., 548

F.3d 375, 378 (5th Cir. 2008).

management circuit judges, we must follow binding precedent.” Consumers’

Rsch. v. Consumer Prod. Safety Comm’n, 91 F.4th 342, 346 (5th Cir. 2024),

cert. denied, 154 S. Ct. 414 (2024). 14

C

Louisiana next argues that the Superintendent and the BESE-

member defendants are entitled to sovereign immunity. It contends that the

Ex parte Young 15 exception to sovereign immunity is inapplicable here

because (1) there must be a direct threat of enforcement against the plaintiffs

to find an ongoing violation of federal law in a pre-enforcement challenge like

this one, and (2) these defendants lack the requisite enforcement authority

over H.B. 71.

“Generally, States are immune from suit under the terms of the

Eleventh Amendment and the doctrine of sovereign immunity.” Whole

Woman’s Health v. Jackson, 595 U.S. 30, 39 (2021). “This bar also applies to

suits like this one ‘against state officials or agencies that are effectively suits

against a state.’” Book People, 91 F.4th at 334 (quoting City of Austin v. Paxton,

_____________________

14

Because Plaintiffs have standing under the Establishment Clause, we do not

reach Louisiana’s arguments regarding whether Plaintiffs have standing to press their Free

Exercise Clause claims. See Sherbert v. Verner, 374 U.S. 398, 410 (1963) (declining to reach

plaintiff’s equal protection claim “[i]n view of the result [the Court] reached under the

First and Fourteenth Amendment’s guarantee of free exercise of religion”); see also e.g.,

Espinoza, 591 U.S. at 488–89 & n.5 (finding Free Exercise violation; declining to reach

Establishment Clause and Equal Protection claims); Flast v. Cohen, 392 U.S. 83, 104 n.25

(1968) (finding standing to press Establishment Clause claim; declining to reach Free

Exercise claim); Masterpiece Cakeshop, Ltd. v. Colo. C.R. Comm’n, 584 U.S. 617 (2018)

(finding Free Exercise violation; declining to reach Free Speech claim); First Nat’l Bank of

Bos. v. Bellotti, 435 U.S. 765, 774 n.8 (1978) (finding First Amendment violation; declining

to reach Equal Protection claim); League of United Latin Am. Citizens v. Perry, 548 U.S. 399,

442 (2006) (finding Voting Rights Act violation; declining to reach First Amendment and

Equal Protection claims).

15

Ex parte Young, 209 U.S. 123 (1908).

943 F.3d 993, 997 (5th Cir. 2019)). Under the Ex parte Young exception to

sovereign immunity, “a litigant may sue a state official in his official capacity

if the suit seeks prospective relief to redress an ongoing violation of federal

law.” Williams ex rel. J.E. v. Reeves, 954 F.3d 729, 736 (5th Cir. 2020) (citing

Ex parte Young, 209 U.S. at 167–68).

The Supreme Court has warned that “a court need only conduct a

‘straightforward inquiry into whether [the] complaint alleges an ongoing

violation of federal law and seeks relief properly characterized as

prospective.’” Verizon Md., Inc. v. Pub. Serv. Comm’n of Md., 535 U.S. 635,

645 (2002) (alteration in original) (emphasis added). The ongoing and

continuous violation of federal law requirement “merely distinguishes

between cases where the relief sought is prospective in nature, . . . and cases

where relief is retrospective.” Summit Med. Assocs., P.C. v. Pryor, 180 F.3d

1326, 1338 (11th Cir. 1999). It “does not mean that the enforcement of the

allegedly unconstitutional state statute actually must be in progress against

the particular plaintiffs initiating suit.” Id. Rather, “the Ex parte Young

analysis turns on the complaint’s context,” that is, “whether ‘the state

officer, by virtue of his office, has some connection with the enforcement of

the act.’” Air Evac EMS, Inc. v. Tex., Dep’t of Ins., Div. of Workers’ Comp.,

851 F.3d 507, 519 (5th Cir. 2017) (citing Ex parte Young, 209 U.S. at 157); see

id. (rejecting defendants’ argument that the Ex parte Young exception did not

apply because the challenged action was not enforced against the plaintiff,

noting the correct inquiry was “whether state defendants [had] the requisite

connection to the enforcement of the [challenged action]”).

“To satisfy the required enforcement connection, the state official

must have a duty beyond ‘the general duty to see that the laws of the state

are implemented.’” Book People, 91 F.4th at 335 (citation omitted). “We have

defined ‘enforcement’ as ‘compulsion or constraint,’” such that “[i]f the

official does not compel or constrain anyone to obey the challenged law,

enjoining that official could not stop any ongoing constitutional violation.”

Id. (alteration in original) (quoting City of Austin, 943 F.3d at 1002).

“Plaintiffs need only show a ‘scintilla of enforcement by the relevant state

official.’” Id. (quoting Tex. Democratic Party v. Abbott, 978 F.3d 168, 179 (5th

Cir. 2020)).

H.B. 71 commands the BESE to “adopt rules and regulations . . . to

ensure [its] proper implementation.” La. R.S. § 17:2124(B)(6)(a) (emphasis

added). Louisiana argues that this obligation does not amount to enforcement

power because the possibility that the BESE may someday promulgate rules

and regulations is insufficient to invoke Ex parte Young. See Whole Woman’s

Health, 595 U.S. at 44 (holding that the possibility that the Texas Medical

Board “might in the future” promulgate a rule that the attorney general

could enforce was insufficient to invoke Ex parte Young). But the BESE is

not merely permitted to adopt rules and regulations implementing H.B. 71, it

must do so. La. R.S. § 17:2124(B)(6)(a) (“The [BESE] shall adopt rules

and regulations in accordance with the Administrative Procedure Act to

ensure the proper implementation of this Section.” (emphasis added)).

Louisiana also argues that the BESE’s exercise of its authority to

implement H.B. 71 will not compel or constrain anyone to obey the

challenged law. See Book People, 91 F.4th at 335. We disagree because the rules

and regulations adopted by the BESE must “ensure [H.B. 71’s] proper

implementation,” meaning the BESE-member defendants will necessarily

compel “each public school governing authority [to] display the Ten

Commandments in each classroom in each school under its jurisdiction.”

La. R.S. § 17:2124(B)(6)(a), (B)(1). And under state law, the

Superintendent must “implement the policies and programs of the [BESE]

and the laws affecting schools under the jurisdiction of the [BESE].” Id.

§ 17:22(3)–(4). As the district court concluded: “[A]n injunction against the

Superintendent would prevent the implementation of any regulations related

to H.B. 71, thus preventing constitutional violations.”

All that our caselaw requires is a “scintilla of enforcement.” Book

People, 91 F.4th at 335. The district court ruled that Plaintiffs met their

burden; we find no error.

IV

Louisiana next challenges the denial of its Rule 12(b)(6) motion to

dismiss Plaintiffs’ Establishment Clause claims. 16

We review the denial of a motion to dismiss for failure to state a claim

de novo. Ramming, 281 F.3d at 161. “To survive a motion to dismiss, a

complaint must contain sufficient factual matter, accepted as true, to ‘state a

claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). 17

The parties agree that Plaintiffs have asserted a facial challenge to

H.B. 71. “To successfully mount a facial challenge, the plaintiffs must show

that there is no set of circumstances under which [H.B. 71] is constitutional.”

Croft v. Perry, 624 F.3d 157, 164 (5th Cir. 2010).

_____________________

16

Because we do not address whether Plaintiffs have standing to press their Free

Exercise Claims, see supra note 14, we do not reach Louisiana’s arguments regarding these

claims. See Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 430–31 (2007)

(“[A] federal court generally may not rule on the merits of a case without first determining

that it has . . . subject matter jurisdiction[] . . . .” (citation omitted)).

17

As noted, because the “underpinnings” of Louisiana’s motion to dismiss are

“inextricably intertwined” with the district court’s ruling issuing a preliminary injunction,

we have jurisdiction to address the 12(b)(6) ruling. See Jiao, 28 F.4th at 596.

A

The Establishment Clause “was intended to erect ‘a wall of

separation between Church and State.’” Everson v. Bd. of Educ. of Ewing

Twp., 330 U.S. 1, 16 (1947) (quoting Reynolds v. United States, 98 U.S. 145,

164 (1878)). At a minimum, the Establishment Clause ordains that no federal

or state government “can pass laws which aid one religion, aid all religions,

or prefer one religion over another.” Id. at 15.

The Supreme Court “has been particularly vigilant in monitoring

compliance with the Establishment Clause in elementary and secondary

schools.” Edwards v. Aguillard, 482 U.S. 578, 583–84 (1987). That vigilance

must be exercised with prescribed “care and restraint” because public

education is primarily in the hands of the States and local authorities.

Epperson v. Arkansas, 393 U.S. 97, 104 (1968); see Yoder, 406 U.S. at 213

(“Providing public schools ranks at the very apex of the function of a

State.”). This means “[c]ourts . . . cannot intervene in the resolution of

conflicts which arise in the daily operation of school systems and which do

not directly and sharply implicate basic constitutional values.” Epperson, 393

U.S. at 104. For still, “a State’s interest in universal education, however

highly we rank it, is not totally free from a balancing process when it impinges

on fundamental rights and interests, such as those specifically protected by

. . . the First Amendment, and the traditional interest of parents with respect

to the religious upbringing of their children.” Yoder, 406 U.S. at 214.

The protections afforded to schoolchildren by the Establishment

Clause unquestionably “implicate basic constitutional values.” Epperson, 393

U.S. at 104. As the Court has previously explained:

Families entrust public schools with the education of their

children, but condition their trust on the understanding that

the classroom will not purposely be used to advance religious

views that may conflict with the private beliefs of the student

and his or her family. Students in such institutions are

impressionable and their attendance is involuntary. The State

exerts great authority and coercive power through mandatory

attendance requirements, and because of the students’

emulation of teachers as role models and the children’s

susceptibility to peer pressure. Furthermore, “[t]he public

school is at once the symbol of our democracy and the most

pervasive means for promoting our common destiny. In no

activity of the State is it more vital to keep out divisive forces

than in its schools. . . .”

Edwards, 482 U.S. at 584 (alterations in original) (citations omitted). That is

why a religious practice may be deemed unconstitutional in the “special

context of the public elementary and secondary school system,” but deemed

constitutional elsewhere. Id. at 583.

Perhaps no better case illustrates the nature of H.B. 71’s

constitutional problem than Stone v. Graham, 449 U.S. 39 (1980) (per

curiam). In Stone, the Supreme Court struck down a Kentucky statute

requiring that the Ten Commandments be displayed on the wall of every

public classroom in the state because it had no “secular legislative

purpose.” 18 449 U.S. at 41 (applying Lemon test).

_____________________

18

The statute read:

(1) It shall be the duty of the superintendent of public instruction, provided

sufficient funds are available as provided in subsection (3) of this Section,

to ensure that a durable, permanent copy of the Ten Commandments shall

be displayed on a wall in each public elementary and secondary school

classroom in the Commonwealth. The copy shall be sixteen (16) inches

wide by twenty (20) inches high.

(2) In small print below the last commandment shall appear a notation

concerning the purpose of the display, as follows: ‘The secular application

of the Ten Commandments is clearly seen in its adoption as the

According to Kentucky, the statute’s secular legislative purpose was

reflected on the displays in a small notation below the Commandments:

“The secular application of the Ten Commandments is clearly seen in its

adoption as the fundamental legal code of Western Civilization and the

Common Law of the United States.” Id. at 41. The Court held that the state’s

avowed purpose was a sham, and the statute was therefore unconstitutional.

Id. It explained, “[t]he pre-eminent purpose for posting the Ten

Commandments on schoolroom walls is plainly religious in nature. The Ten

Commandments are undeniably a sacred text in the Jewish and Christian

faiths, and no legislative recitation of a supposed secular purpose can blind

us to that fact.” Id. at 40–42 (footnote and citations omitted).

Instead of integrating the Ten Commandments “into [a] school

curriculum[] where the Bible may . . . be used in an appropriate study,”

which the state could lawfully do, the posters “serve[d] no such educational

function.” Id. at 42 (citing Schempp, 374 U.S. at 225). Rather, “[i]f the posted

copies of the Ten Commandments are to have any effect at all, it will be to

induce the schoolchildren to read, meditate upon, perhaps to venerate and

obey, the Commandments. . . . [That] is not a permissible state objective

under the Establishment Clause.” Id.

Twenty-five years after it decided Stone, the Supreme Court held in

Van Orden v. Perry, 545 U.S. 677 (2005) (plurality opinion), that a monument

_____________________

fundamental legal code of Western Civilization and the Common Law of

the United States.’

(3) The copies required by this Act shall be purchased with funds made

available through voluntary contributions made to the state treasurer for

the purposes of this Act.”

Id. at 39 n.1 (citing 1978 Ky. Acts, ch. 436, § 1 (effective June 17, 1978), Ky. Rev. Stat.

§ 158.178 (1980)).

of the Ten Commandments displayed on the Texas State Capitol grounds

was constitutional under the Establishment Clause. The Court declined to

apply the Lemon test—“[i]nstead, [its] analysis, [was] driven both by the

nature of the monument and by our Nation’s history.” Id. at 686. It found

that “[t]here is an unbroken history of official acknowledgment by all three

branches of government of the role of religion in American life from at least

1789.” Id. (citing Lynch, 465 U.S. at 674). It then found similar

“acknowledgments of the role played by the Ten Commandments in our

Nation’s heritage.” Id. at 688–90. Because “Texas ha[d] treated its Capitol

grounds monuments as representing the several strands in the State’s

political and legal history,” the Court “[could not] say that Texas’[s] display

. . . violates the Establishment Clause.” Id. at 691–92.

The Supreme Court noted, however, that “[t]here are, of course,

limits to the display of religious messages or symbols.” Id. at 690. It

distinguished Texas’s monument as a “far more passive use of [the Ten

Commandments] than was the case in Stone, where the text confronted

elementary school students every day.” Id. at 691; see also id. at 703

(Breyer, J., concurring) (“The display is not on the grounds of a public

school, where, given the impressionability of the young, government must

exercise particular care in separating church and state.”).

B

Louisiana argues that Stone is not controlling because it relies on

Lemon, which is no longer good law, but even if Stone remains binding, it is

distinguishable because (1) the displays in Stone stood alone, not alongside

other documents as allowed by H.B. 71, and (2) Louisiana has a valid “secular

historical and educational purpose” for displaying the Ten Commandments

in classrooms. We disagree.

It is the Supreme Court’s “prerogative alone to overrule one of its

precedents.” Bosse v. Oklahoma, 580 U.S. 1, 3 (2016) (per curiam) (quoting

United States v. Hatter, 532 U.S. 557, 567 (2001)). The Court has been clear:

When one of its precedents “has direct application in a case, yet appears to

rest on reasons rejected in some other line of decisions, the Court of Appeals

should follow the case which directly controls.” Rodriguez de Quijas v.

Shearson/Am. Exp., Inc., 490 U.S. 477, 484 (1989).

Although the Supreme Court set aside the Lemon test in Kennedy, see

597 U.S. at 534–36, Kennedy did not overrule Stone. Kennedy does not

mention Stone or purport to overrule the decisions (other than Lemon) on

which Stone relies, i.e., Schempp or Engel. Stone remains good law and

therefore controls, if it “direct[ly] appli[es].” 19 Rodriguez de Quijas, 490 U.S.

at 484; see Jusino v. Fed’n of Cath. Tchrs., Inc., 54 F.4th 95, 102 (2d Cir. 2022)

(holding that N.L.R.B. v. Cath. Bishop of Chi., 440 U.S. 490 (1979) “remains

good law notwithstanding its reliance . . . on Lemon v. Kurtzman” because

Kennedy did not “overrule – or even mention – Catholic Bishop”). We

conclude that it does.

Both H.B. 71 and the Kentucky statute require that the Ten

Commandments be displayed (1) in every public school classroom in the state

(2) on a poster subject to comparable minimum size requirements (3) with

context statements purporting to describe the historical basis for each display

and (4) as the central focus of the display. Both statutes (5) allow the posters

to be financed by private contributions, (6) task the superintendent with

implementing its mandates, and neither statute (7) actually integrates the

Ten Commandments into an educational curriculum. Compare La. R.S.

_____________________

19

At least one other circuit has cited to Stone with approval post-Kennedy. See

Hilsenrath ex rel. C.H. v. Sch. Dist. of Chathams, 136 F.4th 484, 492 n.65 (3rd Cir. 2025).

§ 17:2124(B), with Stone, 449 U.S. at 39 n.1 (citing Ky. Rev. Stat.

§ 158.178 (1980)).

Under H.B. 71, public schools “may” display the Ten

Commandments alongside the Mayflower Compact, Declaration of

Independence, and the Northwest Ordinance—they are not required do so.

La. R.S. § 17:2124(B)(4)(a). Conversely, H.B. 71 includes an express

“minimum requirement that the Ten Commandments shall be displayed on

a poster or framed document that is at least eleven inches by fourteen

inches,” that “[t]he text of the Ten Commandments shall be the central

focus” of the display, “and shall be printed in a large, easily readable font.”

Id. at § 17:2124(B)(1) (emphases added). An H.B. 71 display that meets the

statute’s minimum requirements is materially identical to the displays

challenged in Stone. 20

Stone’s reasoning is equally germane. In Stone, the Supreme Court

deemed Kentucky’s proffered secular purpose insufficient to survive

constitutional muster because Kentucky did not integrate the Ten

Commandments, an inherently religious text, into an educational curriculum

“where the Bible may constitutionally be used in an appropriate study of

history, civilization, ethics, comparative religion, or the like.” 449 U.S. at 42

(citing Schempp, 374 U.S. at 225). Posting the Ten Commandments on

classroom walls therefore “serve[d] no . . . educational function.” Id. The

_____________________

20

Louisiana submitted twelve sample displays to the district court. These posters

range in color, format, and subject matter. Some include the Ten Commandments

alongside quotes and pictures of prominent figures like Speaker Mike Johnson, Justice Ruth

Bader Ginsburg, Martin Luther King Jr., and Lin Manuel Miranda portraying Alexander

Hamilton. The district court found that the samples fail to satisfy H.B. 71’s minimum

requirements because the Ten Commandments are not “printed in a large, easily readable

font.” We also note that the Ten Commandments are not the “central focus” of each

display, and some displays include documents other than those permitted by H.B. 71.

same is true of H.B. 71. The statute does not require that the Ten

Commandments be integrated into a curriculum of study. On the contrary,

under the statute’s minimum requirements, the posters must be

indiscriminately displayed in every public school classroom in Louisiana

regardless of class subject-matter. See La. R.S. § 17:2124(B)(1). Louisiana

insists, however, that unlike Kentucky, its Legislature has a valid “secular

historical and educational purpose” for displaying the Ten Commandments

in classrooms, which is reflected in the statute. 21

“Courts are ‘normally deferential to a [legislative] articulation of a

secular purpose.’” Croft, 624 F.3d at 166 (alteration in original) (quoting

Edwards, 482 U.S. at 587). But an alleged secular purpose “must be

‘sincere,’” and not “merely a ‘sham.’” Id. (quoting Wallace v. Jaffree, 472

U.S. 38, 64 (1985) (Powell, J., concurring)). When “undertaking a

‘sham’ inquiry, we consider whether the challenged action furthers the

particular purposes articulated by the legislature or whether the challenged

action contravenes those avowed purposes.” Id. (brackets omitted) (citing

Freiler v. Tangipahoa Par. Bd. of Educ., 185 F.3d 337, 344 (5th Cir. 1999)).

Louisiana’s purported legislative purpose states:

It is the Legislature’s intent to apply the decision set forth by

the Supreme Court of the United States in Van Orden v. Perry,

545 U.S. 677 (2005), to continue the rich tradition [of including

the Ten Commandments in the education of our children] and

ensure that the students in our public schools may understand

and appreciate the foundational documents of our state and

national government.

La. R.S. § 17:2124(A)(9).

_____________________

21

We do not undertake this analysis to revive Lemon, but only for the limited

purpose of deciding whether Stone’s facts and reasoning control.

Plaintiffs allege H.B. 71’s legislative history reveals additional signs of

a “sham” legislative purpose:

 H.B. 71’s primary author and sponsor stated during a legislative

debate: “It is so important that our children learn what God says is

right, and what he says is wrong, and to allow [the Ten

Commandments] to be displayed in our classrooms as a visual aid, I

believe, especially in this day and time is so important.” 22

 In support of the bill, a co-author of the bill stated, “I really believe

that we are lacking in direction. A lot of people, their children, are not

attending churches . . . . We need to do something in the schools to

bring people back to where they need to be.” Debate, at 15:17.

 H.B. 71’s primary author also stated, “You know, not all children . . .

are taught right from wrong. . . . But I believe when I went to school, I

learned . . . to know there was a God by reciting the Ten

Commandments . . . . I knew what God said was right, and what he

said was wrong, . . . not all of us were taught that.” Debate, at 15:55.

 When asked how a Buddhist or Muslim student would interpret one

of the Commandments, the bill’s author responded, “Well I’m not

Buddhist or Muslim so I’m not really worried about defining it for

them. . . . [The Ten Commandments] [are] a model for what’s God—

it’s God’s law, and it’s universal law.” Debate, at 19:42.

 Another co-author and co-sponsor of H.B. 71 expressed his support

for the law during debate by claiming that those who oppose it are

waging an “attack on Christianity” and suggesting that it would

_____________________

22

An Act Requiring the Display of the Ten Commandments in Public Schools,

H.B. 71, 2024 Reg. Sess. (La. 2024), at 05:08, https://house.louisiana.gov/H_Video/

VideoArchivePlayer?v=house/2024/apr/0404_24_ED [Debate].

provide a religious counterbalance to students’ secular education:

“My wife is a Christian and if she was a teacher she would be asked to

teach evolution which is in complete contradiction with the theory of

creation that we believe out of the Bible. . . . I am a parent and am

asking for this [bill].”

Citing these statements, the district court found that Louisiana’s

avowed secular purposes were “implausible [and] inadequate.” See Croft,

624 F.3d at 167 (citation modified). These statements indeed “support a

commonsense conclusion that a religious objective permeated the

government’s action.” Id; see Edwards, 482 U.S. at 591–92 (concluding that

the “preeminent purpose of the [state legislature] was clearly to advance [a]

religious viewpoint” based on statements by legislators and testimony

presented during legislative hearings).

It is also unclear how H.B. 71 ensures that students in Louisiana public

schools “understand and appreciate the foundational documents of [its] state

and national government” when it makes displaying those “foundational”

documents optional, and does not require that they also be printed in a large,

easily readable font. La. R.S. § 17:2124(A)(9). When the Ten

Commandments must be posted prominently and legibly, while the other

“contextual” materials need not be visible at all, the disparity lays bare the

pretext.

To the extent that Louisiana relies on Van Orden to justify displaying

the Ten Commandments in classrooms, we have already explained that the

public school classroom implicates certain protections that other contexts,

like the Texas State Capital grounds, does not. See supra Section IV(A). The

Supreme Court said as much in Van Orden. See 454 U.S. at 690–91 (“There

are, of course, limits to the display of religious messages or symbols. . . . Stone

. . . was a consequence of the ‘particular concerns that arise in the context of

public elementary and secondary schools.’ . . . The placement of the Ten

Commandments monument on the Texas State Capitol grounds is a far more

passive use of those texts than was the case in Stone, where the text

confronted elementary school students every day.” (citations omitted)).

As in Stone, “[i]f the posted copies of the Ten Commandments are to

have any effect at all, it will be to induce the schoolchildren to read, meditate

upon, perhaps to venerate and obey, the Commandments.” 449 U.S. at 42.

This “is not a permissible state objective under the Establishment Clause.”

Id.

Stone v. Graham is controlling. Under Stone, H.B. 71 is plainly

unconstitutional. The district court did not err.

C

We also agree with the district court that, even if Stone were

overturned tomorrow, H.B. 71 violates the Establishment Clause under

Kennedy. Louisiana counters that the district court misapplied Kennedy

because, under Kennedy, the threshold question in an Establishment Clause

analysis is whether the challenged practice implicates historical hallmarks of

religious establishments. We disagree.

As noted, Kennedy shed light on the proper standard for interpreting

Establishment Clause claims, holding that “the Establishment Clause must

be interpreted by ‘reference to historical practices and understandings.’” 597

U.S. at 535 (quotation marks omitted). “The line that courts and

governments must draw between the permissible and the impermissible has

to accord with history and faithfully reflect the understanding of the

Founding Fathers.” Id. at 536–37 (citation modified) (citing Galloway, 572

U.S. at 577; Schempp, 374 U.S. at 294).

The Supreme Court then addressed the district’s alternative

argument—that the district’s actions were justified because it “would have

been guilty of coercing students to pray” if it allowed the coach to continue

publicly praying on school property. Id. at 536. Acknowledging that

“coercion . . . was among the foremost hallmarks of religious establishments

the framers sought to prohibit when they adopted the First Amendment,”

the Court concluded there was insufficient evidence of coercion by the coach.

Id. at 537 & n.5 (citing Shurtleff v. City of Boston, 596 U.S. 243, 285–88 (2022)

(Gorsuch, J., concurring) (examining the historical hallmarks of an

established religion)). But Kennedy did not adopt these “hallmarks” 23 as the

exclusive Establishment Clause test and the Shurtleff concurrence is non-

binding. See Kennedy, 597 U.S. at 536–37 & n.5. Louisiana conceded as much

before the district court.

We applied Kennedy and Galloway in Freedom From Religion

Foundation, Inc. v. Mack. There, plaintiffs challenged a Texas Justice of the

Peace’s practice of opening his court with a prayer. Mack, 49 F.4th at 944.

We looked to Galloway, in which the Supreme Court upheld a town’s

practice of commencing its board meetings with a prayer, and we formulated

the following standard to evaluate historical record evidence: Whether the

challenged practice “fits within” or is “consistent with a broader tradition”

at the time of the Founding or incorporation. Id. at 951. This analysis

_____________________

23

The “hallmarks” of religious establishment include whether the government:

(1) “exerted control over the doctrine and personnel of the established church”;

(2) “mandated attendance in the established church and punished people for failing to

participate”; (3) “punished dissenting churches and individuals for their religious

exercise”; (4) “restricted political participation by dissenters”; (5) “provided financial

support for the established church, often in a way that preferred the established

denomination over other churches”; and (6) “used the established church to carry out

certain civil functions, often by giving the established church a monopoly over a specific

function.” Shurtleff, 596 U.S. at 286 (Gorsuch, J., concurring) (citations omitted).

“depends on ‘original meaning and history,’ with particular attention paid to

‘historical practices.’” Id. (citing Kennedy, 597 U.S. at 535); see Galloway, 572

U.S. at 577 (“The Court’s inquiry, then, must be to determine whether the

prayer practice in the town of Greece fits within the tradition long followed

in Congress and the state legislatures.”).

Applying Kennedy and Mack here, the district court framed the

“broader tradition” as the use of the Ten Commandments in public

education, and the challenged practice as “the permanent posting of the Ten

Commandments in public[] school classrooms.” No one challenges that

framing. Therefore, the question before us is whether the permanent posting

of the Ten Commandments in public school classrooms fits within, or is

consistent with, a broader tradition of using the Ten Commandments in

public education.

Plaintiffs allege that “[t]here is no longstanding tradition of

permanently displaying the Ten Commandments in public[] school

classrooms in Louisiana or the United States more generally.” They also

allege that “[H.B. 71] includes false statements relating to a purported

history and connection between the Ten Commandments and government

and public education in the United States,” including a “fabricated” quote

by James Madison regarding this country’s “capacity . . . to govern ourselves

according to the moral principles of the Ten Commandments.”

Accepting these allegations as true, the district court found that

Plaintiffs adequately pleaded an Establishment Clause violation under

Kennedy. We find no error. 24

_____________________

24

Because neither we nor the Supreme Court have decided an Establishment

Clause case involving the public school context since Kennedy, we assume without deciding

V

Lastly, Louisiana challenges the preliminary injunction as erroneously

granted and overbroad.

“We review the district court’s grant of [a] preliminary injunction for

abuse of discretion, reviewing underlying factual findings for clear error and

legal conclusions de novo.” Harrison v. Young, 48 F.4th 331, 339 (5th Cir.

2022).

A preliminary injunction is proper if Plaintiffs can show “(1) a

substantial likelihood of success on the merits, (2) a substantial threat of

irreparable harm absent the injunction, (3) that the harm [Plaintiffs] will

suffer without the injunction outweighs the cost to comply with the

injunction, and (4) that the injunction is in the public interest.” Id.

A

Louisiana argues that Plaintiffs are unlikely to succeed on the merits

of their Establishment Clause claims for the same reasons asserted in its

consolidated motion to dismiss: lack of subject matter jurisdiction and

because H.B. 71 is constitutional under Kennedy.

The district court correctly found that Plaintiffs’ claims are ripe, they

have shown standing to bring their Establishment Clause claims, and no

defendant is entitled to sovereign immunity. The district court also found

that H.B. 71 violates the Establishment Clause under Stone, which remains

good law and controlling.

Under Kennedy and Mack, the district court determined that to

succeed on the merits, Plaintiffs must show that the practice at issue—

_____________________

that the historical framework formulated in Mack is applicable here, and cite Mack for this

very limited purpose.

permanently displaying the Ten Commandments in public school

classrooms—does not “fit[] within,” and is not “consistent with,” a broader

tradition existing at the time of the founding. Mack, 49 F.4th at 950–51.

In support of their motion for a preliminary injunction, Plaintiffs

presented the expert testimony of Dr. Steven Green, a religious and

constitutional legal historian. Dr. Green testified that the public school

system did not exist at the founding; rather, public education originated

sometime around the late 1820s. Dr. Green also found no evidence that the

Ten Commandments were permanently displayed in early American public

schools. He testified that no state enacted a law allowing the display of the

Ten Commandments in public schools until North Dakota did so in 1927, and

that a court later stuck down the statute. See Ring v. Grand Forks Pub. Sch.

Dist. No. 1, 483 F. Supp. 272 (D.N.D. 1980).

Dr. Green also testified about the books cited in H.B. 71’s context

statement. The New England Primer, whose initial publication predates the

existence of the public school system, he explained, was primarily used in

religious schools and private academies. The McGuffey Readers had six levels.

About half referenced the Ten Commandments, and only sporadically (in

approximately 4 lessons out of 200 lessons), and their prevalence lessened

over time. He testified that most versions of Webster’s American Spelling

Book included no reference to the Ten Commandments. Citing his findings

and a “lack of compelling counterevidence,” he rebutted H.B. 71’s

declaration that “The Ten Commandments were a prominent part of

American public education for almost three centuries,” see La. R.S.

§ 17:2124(B)(3). 25 Louisiana did not present any expert testimony.

_____________________

25

Louisiana contends that the H.B. 71 displays involve a “far more passive” use of

the Ten Commandments than the books cited in the statute’s context statement because

the displays “will simply appear on a wall for students to observe or ignore as they wish.”

Based on Dr. Green’s testimony, the district court found a substantial

likelihood that there is insufficient evidence of a broader tradition in place at

the time of the founding, or within the history of public education, so as to

justify H.B. 71. 26 This finding is not clearly erroneous. 27 The district court

_____________________

But “it is no defense to urge that the religious practice[] here may be [a] relatively minor

encroachment[] on the First Amendment.” Schempp, 374 U.S. at 225.

26

Louisiana challenges the district court’s reliance on Dr. Green’s testimony. It

accuses the court of improperly deferring to expert testimony to resolve constitutional

issues. Indeed, “an expert may never render conclusions of law.” Goodman v. Harris Cnty.,

571 F.3d 388, 399 (5th Cir. 2009). But the legal issue presented—whether H.B. 71 violates

the Establishment Clause—requires, on a motion for preliminary injunction, resolving fact

issues about the Ten Commandments’ role in American history. See Kennedy, 597 U.S. at

534–37; see also Yoder, 406 U.S. at 209 (looking to a party’s “expert witnesses[,] scholars

on religion and education,” in deciding a Free Exercise claim). The district court did not

abuse its discretion by relying on “the historical record compiled by the parties” to

determine whether the Ten Commandments fit within this country’s longstanding history

and tradition. See New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1, 25 n.6

(2022). Separately but relatedly, we decline to address Plaintiffs’ argument that Bruen

required Louisiana, not them, to carry the evidentiary burden in the historical analysis. We

are satisfied that—even assuming the district court correctly assigned the burden—

Plaintiffs have met it.

27

Louisiana separately argues that H.B. 71 is consistent with the broader tradition

of displaying religious imagery on “public property.” It likens the H.B. 71 displays to the

national seal, a proposed national seal featuring Moses, various state and municipal flags,

and the “In God We Trust” motto featured on American currency. As the district court

correctly concluded, under Mack, a court should not construe the relevant tradition too

broadly. See Mack, 49 F.4th at 957 (“Accordingly, we ask whether Mack’s particular

practice is consistent with [the] tradition [of prayer before ‘deliberative bodies].’”). Not

only does Dr. Green’s testimony establish that there is no “unbroken history” of displaying

the Ten Commandments in public school classrooms, Lynch, 465 U.S. at 674, but as we

have made clear, supra section IV(A), the display of religious symbols in public classrooms

is patently distinguishable from the display of religious imagery in government buildings.

See also Galloway, 572 U.S. at 590 (distinguishing Galloway from Lee where “the Court

found that, in the context of a graduation where school authorities maintained close

supervision over the conduct of the students and the substance of the ceremony, a religious

invocation was coercive as to an objecting student,” because legislative prayer did not

present “an unconstitutional imposition as to mature adults, who ‘presumably’ are ‘not

readily susceptible to religious indoctrination or peer pressure’”); Am. Legion, 588 U.S. at

did not err in finding that Plaintiffs showed a substantial likelihood of success

on the merits of their Establishment Clause claims.

B

As to the second element, a substantial threat of irreparable harm

absent the injunction, Louisiana argues that Plaintiffs cannot show any harm

because they do not know what the posters will look like and therefore cannot

know whether any poster will violate the First Amendment.

This argument fails for the same reasons Louisiana’s ripeness

argument fails. H.B. 71’s minimum requirements provide sufficient details

about how the Ten Commandments must be displayed. Plaintiffs have shown

that those displays will cause an “irreparable” deprivation of their First

Amendment rights. See Elrod, 427 U.S. at 373.

C

The third element is whether the harm that Plaintiffs will suffer absent

the injunction “outweighs the cost to comply with the injunction.” Harrison,

48 F.4th at 339. “Where the State is appealing an injunction, its interest and

harm merge with the public interest,” the fourth element. Book People, 91

F.4th at 340–41.

Louisiana will “suffer[] the irreparable harm of denying the public

interest in the enforcement of its laws.” Id. at 341 (citation omitted). But it

does not have a genuine “interest in enforcing a regulation that violates

_____________________

51 n.16 (dividing Establishment Clause cases “into six rough categories” including a

category involving “religious references or imagery in public monuments, symbols, mottos,

displays, and ceremonies” and another category involving “religious expression in public

schools”); see also Edwards, 482 U.S. at 583 n.4 (noting that “a historical approach is not

useful in determining the proper roles of church and state in public schools, since free

public education was virtually nonexistent at the time the Constitution was adopted”).

federal law.” Id. (citation omitted). On the contrary, “[i]njunctions

protecting First Amendment freedoms are always in the public interest,”

Opulent Life Church v. City of Holly Springs, 697 F.3d 279, 298 (5th Cir. 2012)

(brackets and citation omitted), and courts must be “particularly vigilant in

monitoring compliance with the Establishment Clause in elementary and

secondary schools.” Edwards, 482 U.S. at 583–84.

The district court did not abuse its discretion by finding that Plaintiffs

satisfied the preliminary injunction elements.

D

Finally, we reject Louisiana’s challenge to the district court’s order

that the Superintendent and BESE-member defendants provide notice of

the injunction to all Louisiana public and charter schools. Louisiana’s chief

argument is that the notice provision is “an effort to achieve by other means

an improper statewide injunction.” That argument falls because nothing

would prohibit a statewide injunction under these circumstances. See Rodgers

v. Bryant, 942 F.3d 451, 458–59 (8th Cir. 2019); Milliken v. Bradley, 418 U.S.

717, 744 (1974) (“The controlling principle consistently expounded in our

holdings is that the scope of the remedy is determined by the nature and

extent of the constitutional violation.” (citing Swann v. Charlotte-

Mecklenburg Bd. of Ed., 402 U.S. 1, 16 (1971))).

* * *

We AFFIRM the district court’s entry of a preliminary injunction

and denial of Louisiana’s consolidated motion to dismiss as to Plaintiffs’

Establishment Clause claims.

James L. Dennis, Circuit Judge, concurring:

I join the majority opinion in full. I write separately to offer two

additional bases for affirming the district court’s judgment. First, the

Plaintiffs have standing under settled Supreme Court precedents recognizing

“offended observer” standing in Establishment Clause cases. See, e.g., Lee v.

Weisman, 505 U.S. 577 (1992); Sch. Dist. of Abington Twp. v. Schempp, 374

U.S. 203 (1963). Second, Louisiana vastly overstates both the holding and

reach of Kennedy v. Bremerton School District, 597 U.S. 507 (2022). That

decision did not undermine—much less overrule—Stone v. Graham, 449

U.S. 39 (1980). Nor did it eliminate the component parts of Lemon v.

Kurtzman, 403 U.S. 602 (1971). 1

I

Plaintiffs seeking to press claims in federal court face several hurdles,

most basic among them the requirement that they have suffered an “injury

in fact.” See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992). For more

than six decades, however, the Supreme Court has recognized that personal

exposure to objectionable religious expression by the government can satisfy

that requirement when the claim arises under the Establishment Clause.

This “offended observer” or “exposure” theory of standing permits

plaintiffs to sue based on a substantial likelihood of encountering state-

sponsored religious expression. See Carl H. Esbeck, Unwanted Exposure to

Religious Expression by Government: Standing & the Establishment Clause,

_____________________

1

Lemon formalized a three-part test for evaluating Establishment Clause violations:

state action is unconstitutional if it (1) lacks a secular legislative purpose; (2) has the

primary effect of advancing or inhibiting religion; or (3) fosters an excessive entanglement

between government and religion. 403 U.S. at 612–13. Over time, courts interpreting the

second prong began asking whether a “reasonable observer” would view the government’s

challenged action an “endorsement” of religion, giving rise to the so-called “endorsement

test.” See, e.g., Cnty. of Allegheny v. Am. C.L. Union, 492 U.S. 573, 593 (1989).

7 Charleston L. Rev. 607, 607–08 (2013); 2 Christopher C. Lund,

A Defense of Offended Observer Standing Under the Establishment Clause, 70

Wayne L. Rev. 111, 120–23 (2024). In this context, unwanted exposure

operates as a proxy for the otherwise demanding injury-in-fact requirement.

“There is [offended observer] standing where a plaintiff’s status has led to

being personally exposed to her government’s religious expression, the

message being one with which she disagrees, or she has had to assume a

burden to avoid any such exposure.” Esbeck, supra at 633.

Louisiana contends that we are free to discard offended observer

standing and adopt the minority view advanced by Justices Thomas and

Gorsuch—that the Supreme Court has never recognized such standing

and that the doctrine lacks any basis in law. See, e.g., City of Ocala v. Rojas,

143 S. Ct. 764 (2023) (Mem.) (Gorsuch, J., statement regarding denial of

certiorari); id. at 765 (Thomas, J., dissenting from denial of certiorari);

Am. Legion v. Am. Humanist Ass’n, 588 U.S. 29, 79–89 (2019) (Gorsuch,

J., concurring in the judgment); but see Lund, supra at 132 (arguing that

Justices Thomas and Gorsuch “treat[] standing as parasitic on the

merits”); cf. Warth v. Seldin, 422 U.S. 490, 500 (1975) (“[S]tanding in no

way depends on the merits of the plaintiff’s contention that particular

conduct is illegal.”). Louisiana is mistaken: the Supreme Court majority has

_____________________

2

I agree with Professor Esbeck that the label “offended observer” is misleading

because it implies a plaintiff’s injury is mere offense. Esbeck, supra at 608 n.3. “[T]he

nature of the relevant harm is not emotional or psychological offense, nor is it the intensity

of the offense.” Id. “[T]he successful plaintiff is more than a mere observer, but one who

disagrees with her government’s message.” Id. On this account, the phrase “offended

observer” serves as a rhetorical tool for governmental defendants used to trivialize

Establishment Clause claims and to seek early dismissal for lack of standing. I use the term

here only for clarity.

long recognized and applied offended observer standing in Establishment

Clause cases.

In Lee v. Weisman, Deborah Weisman, a public high school student,

objected to the inclusion of a prayer service at her upcoming graduation. 505

U.S. at 584. The Supreme Court held: “[A] live and justiciable controversy

is before us. Deborah Weisman is enrolled as a student at Classical High

School in Providence and from the record it appears likely, if not certain, that

an invocation and benediction will be conducted at her high school

graduation.” Id. This is the High Court’s clear recognition of offended

observer standing. Weisman would not have had standing if she were a

student at a different school or in a different state. But her substantially likely

future exposure to the government-ordered prayers gave her standing to sue.

Id. at 596–97. Lest there be any doubt, the Court’s standing theory did not

depend on Weisman being more than an offended observer. Nowhere does

Lee suggest that her standing arose from the school forcing or coercing her to

pray. In fact, all nine Justices unanimously agreed on this issue; even the four

dissenters, who emphasized that the school did not coerce Weisman to pray,

did not question her standing. Id. at 637–40.

Lee is not an anomaly. In School District of Abington Township v.

Schempp, the Supreme Court treated standing similarly. 374 U.S. at 225 n.9.

There, the Schempp family challenged a Pennsylvania law requiring students

to read the Bible at the beginning of each school day as a violation of the

Establishment Clause. The Supreme Court declared the Bible reading

unconstitutional, even though the students could be excused without

penalty. As to standing, the Court held:

The parties here are school children and their parents, who are

directly affected by the laws and practices against which their

complaints are directed. These interests surely suffice to give

the parties standing to complain. . . . Compare Doremus v. Board

of Education, 342 U.S. 429 (1952), which involved the same

substantive issues presented here. The appeal was there

dismissed upon the graduation of the school child involved and

because of the appellants’ failure to establish standing as

taxpayers.

Id.

Schempp is less explicit than Lee, but the Court clearly applied

offended observer standing. Earlier in the opinion, the Court had already

explained how the school’s religious lessons “were read to [the Schempp

children] at various times as part of the [school’s] exercises” and “were

contrary to the religious beliefs they held.” Id. at 208. The Court then

concluded the Schempp children were “directly affected” by the prayers in

ways that “suffice[d] to give [them] standing to complain.” Id. at 225 n.9.

One sees the offended observer theory of standing both in Schempp’s self-

characterization and its characterization of Doremus, where the Court held

that plaintiffs lacked standing because the child’s graduation had cut off the

risk of future exposure. Id.; Lund, supra at 120–23; see also Valley Forge

Christian Coll. v. Ams. United for the Separation of Church & State, 454 U.S.

464, 487 n.22 (1982) (explaining with approval that the students in Schempp

had standing because they were “subjected to unwelcome religious exercises

or [were] forced to assume special burdens to avoid them”).

In my estimation, the Supreme Court has long approved offended

observer standing. And as a court of appeals, we are not free to adopt the

views of dissenting Justices over those of the Court’s majority. 3 Although our

_____________________

3

Concomitantly, it would be most unusual to find that these Plaintiffs lack standing

to challenge H.B. 71, a law that is virtually identical to the Kentucky law that the Supreme

Court struck down over forty years ago in Stone v. Graham, 449 U.S. 39 (1980). True

enough, the Supreme Court did not expressly consider whether the Stone plaintiffs had

standing. But “[w]hile we are not bound by previous exercises of jurisdiction in cases in

which our power to act was not questioned but was [approved] sub silentio, neither should

majority opinion does not rest on this ground, I am more than comfortable

concluding that the Plaintiffs have offended observer standing to challenge

H.B. 71 under the Establishment Clause.

II

On the merits of the Establishment Clause claim, Louisiana argues

that we can ignore Stone v. Graham, 449 U.S. 39 (1980) (which struck down

a law like H.B. 71 for lacking a secular purpose), because Stone relied on

Lemon, which Louisiana insists Kennedy fully abandoned. Today we correctly

affirm the district court’s ruling that Stone is controlling. Indeed, as the

majority opinion explains, Kennedy does not mention Stone and “[i]t is the

Supreme Court’s ‘prerogative alone to overrule one of its precedents.’”

Ante, at 31 (quoting Bosse v. Oklahoma, 580 U.S. 1, 3 (2016)).

But even setting aside our lack of authority to overrule Stone, I write

further to highlight the scholarship of Professors Lupu and Tuttle, who argue

that many courts and commentators have overstated Kennedy’s significance.

See Ira C. Lupu & Robert W. Tuttle, The Ten Commandments in Louisiana

Public Schools: A Study in the Survival of Establishment Clause Norms, 100

Chi.-Kent L. Rev. (forthcoming 2025). In their view, Kennedy

repudiated only the endorsement test—an offshoot of Lemon’s second prong

(supra n.1)—and left intact the broader framework of Establishment Clause

doctrine: the requirement of a secular legislative purpose, the prohibition on

policies whose primary effect advances religion, and the concern about

excessive entanglement between church and state. As they note, those

_____________________

we disregard the implications of an exercise of judicial authority assumed to be proper for

over 40 years.” Brown Shoe Co. v. United States, 370 U.S. 294, 307 (1962) (citations

omitted).

principles “do not originate with Lemon,” and the Supreme Court has not

repudiated them.

Take, for example, Schempp, the Court’s seminal school prayer case

decided nearly a decade before Lemon. There, the Supreme Court held that

“to withstand the strictures of the Establishment Clause there must be a

secular legislative purpose . . . .” 374 U.S. at 222 (first citing Everson v. Board

of Education, 330 U.S. 1 (1947); and then citing McGowan v. Maryland, 366

U.S. 420, 442 (1961)). That foundational holding still binds us. Unless

Schempp and its origins are overruled—relief that Louisiana has not sought at

any point in this litigation—the inquiry into the purpose of a state-sponsored

religious display remains mandatory. Abandoning Stone would mark a first

and striking step toward unraveling school prayer cases like Schempp, which

rest on concerns about state-sponsored indoctrination of young,

impressionable, and captive public-school students.

Louisiana’s mistaken reliance on Kennedy as overruling Stone

underscores the point. Kennedy turned not on state action, but on whether

Coach Kennedy’s personal post-game prayers were protected private

speech. The Court concluded they were, and that the school district’s

Establishment Clause concerns could not justify restricting his free exercise.

The Ten Commandments display at issue here, by contrast, is indisputably

state action, undertaken for religious reasons. Still, Louisiana argues that

Kennedy swept away Lemon entirely and, with it, Stone, replacing the existing

framework with a singular focus on history and tradition.

That reading goes too far. True, Kennedy states that “this Court long

ago abandoned Lemon and its endorsement test offshoot.” 597 U.S. at 510.

But only the second part of that sentence is fully supported by the opinion

itself. The only part of Lemon the Court addressed was the endorsement test.

That is, whether a reasonable observer would perceive Coach Kennedy’s

prayers as government sponsorship of religion. Kennedy did not revisit the

secular purpose requirement, the analysis of primary effects, or the concern

with excessive entanglement. And again, these requirements predate Lemon.

“Lemon’s component parts thus remain alive, and function in a variety of

contexts, even if citations to Lemon now will disappear.” Lupu & Tuttle,

supra.

Stone still stands. H.B. 71 falls.