Petition for Writ of Certiorari — Cade Brumley, Superintendent, Louisiana State Education, et al., Petitioners v. Darcy Roake, Reverend, Individually and on Behalf of Their Minor Children, Real Parties in Interest A. V. and S. V., et al.

Supreme Court briefMay 21, 2026

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No. 25-______

In the Supreme Court of the United States

CADE BRUMLEY, ET AL.,

Petitioners,

v.

DARCY ROAKE, ET AL.,

Respondents.

On Petition for Writ of Certiorari to the United

States Court of Appeals for the Fifth Circuit

CONDITIONAL PETITION FOR

WRIT OF CERTIORARI AND APPENDIX

VOLUME 1 OF 2 (Pages 1a–242a)

ERIC C. RASSBACH

JOSEPH C. DAVIS

BENJAMIN A. FLESHMAN

AMANDA L. SALZ

THE BECKET FUND FOR

RELIGIOUS LIBERTY

1919 PENNSYLVANIA AVE.

NW, SUITE 400

WASHINGTON, D.C. 20006

May 21, 2026

ELIZABETH B. MURRILL

Attorney General

J. BENJAMIN AGUIÑAGA

Solicitor General

Counsel of Record

ZACHARY FAIRCLOTH

Principal Deputy

Solicitor General

CAITLIN A. HUETTEMANN

Assistant Solicitor General

LOUISIANA DEPARTMENT OF

JUSTICE

1885 N. Third St.

Baton Rouge, LA 70802

(225) 506-3746

AguinagaB@ag.louisiana.gov

i

QUESTIONS PRESENTED

1. Whether respondents’ challenge to H.B. 71 is

non-justiciable.

2. Whether H.B. 71 is facially unconstitutional

under either the Establishment Clause or the Free Exercise Clause of the First Amendment.

ii

PARTIES TO THE PROCEEDING

Petitioners are 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 (BESE); Judy Armstrong, in her

official capacity as a member of BESE; Kevin Berken,

in his official capacity as a member of BESE; Preston

Castille, in his official capacity as a member of BESE;

Simone Champagne, in her official capacity as a member of BESE; Sharon Latten-Clark, in her official capacity as a member of BESE; Lance Harris, in his official capacity as a member of BESE; Paul Hollis, in

his official capacity as a member of BESE; Sandy Holloway, in her official capacity as a member of BESE;

Stacey Melerine, in her official capacity as a member

of BESE; Ronnie Morris, in his official capacity as a

member of BESE; East Baton Rouge Parish School

Board; Livingston Parish School Board; Vernon Parish School Board; and St. Tammany Parish School

Board. They were defendant-appellants below. Orleans Parish School Board also is a named defendant in

the district court but is not a petitioner here.

Respondents are Darcy Roake and Adrian Van

Young, on behalf of themselves and on behalf of their

minor children, real parties in interest A.V. and S.V.;

Mamie Broadhurst and Richard Williams, on behalf of

themselves and on behalf of their minor child, real

party in interest N.W.; Jeff Sims, on behalf of himself

and on behalf of his minor children, real parties in interest A.S., C.S. 1, and C.S. 2; Jennifer Harding and

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

iii

Christy Alkire, on behalf of herself and on behalf of

her minor child, real party in interest L.A.; David and

Erin Hawley, on behalf of themselves and on behalf of

their minor children, real parties in interest A.H. and

L.H.; Dustin McCrory, on behalf of himself and on behalf of his minor children, real parties in interest

E.M., P.M., and L.M.; Gary Sernovitz and Molly

Pulda, on behalf of themselves and on behalf of their

minor child, real party in interest T.S.; and Joshua

Herlands, on behalf of himself and on behalf of his minor children, real parties in interest E.H. and J.H.

They were the plaintiffs-appellees below.

iv

STATEMENT OF RELATED CASES

Roake v. Brumley, No. 24-30706 (5th Cir.). Judgment and en banc opinion entered Feb. 20, 2026.

Roake v. Brumley, No. 24-cv-517 (M.D. La.). Ruling

and order entered Nov. 12, 2024.

Nathan v. Alamo Heights Indep. Sch. Dist., No. 2550695 (5th Cir.). Judgment and en banc opinion entered Apr. 21, 2026.

Nathan v. Alamo Heights Indep. Sch. Dist., No. 25cv-756 (W.D. Tex.). Order entered Aug. 20, 2025.

v

TABLE OF CONTENTS

QUESTIONS PRESENTED ........................................ i

PARTIES TO THE PROCEEDING ............................ii

STATEMENT OF RELATED CASES ....................... iv

TABLE OF AUTHORITIES .....................................viii

CONDITIONAL PETITION FOR WRIT OF

CERTIORARI .............................................................. 1

OPINIONS BELOW .................................................... 3

JURISDICTION .......................................................... 3

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ......................................... 4

STATEMENT OF THE CASE .................................... 4

A.

The Ten Commandments ............................... 4

B.

Louisiana’s H.B. 71 ........................................ 5

C.

District Court Proceedings ............................. 6

D.

Fifth Circuit Panel Proceedings................... 11

E.

Fifth Circuit En Banc Proceedings .............. 16

REASONS FOR GRANTING THE

CONDITIONAL PETITION ..................................... 20

vi

I.

THIS COURT’S REVIEW IS UNWARRANTED. ........... 20

A. This Case Is Non-Justiciable. ......................... 20

B. Plaintiffs Have No Viable Facial Claims. ...... 24

C. These Issues Are Actively Percolating in the

Lower Courts................................................... 32

II.

IF THE COURT WERE INCLINED TO GRANT

NATHAN, IT SHOULD LIKEWISE GRANT ROAKE. ... 33

CONCLUSION .......................................................... 36

vii

TABLE OF APPENDICES

APPENDIX A — OPINION OF THE

UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT, FILED

FEBRUARY 20, 2026 …………………………………1a

APPENDIX B — OPINION OF THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT, FILED

JUNE 20, 2025……………………………………......61a

APPENDIX C — RULING AND ORDER

OF THE UNITED STATES DISTRICT

COURT FOR THE MIDDLE DISTRICT OF

LOUISIANA, FILED NOVEMBER 12, 2024..….126a

APPENDIX D — OPINION OF THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT, FILED

APRIL 21, 2026………………………………………377a

APPENDIX E — LSA-R.S.17:2124...…….….……528a

viii

TABLE OF AUTHORITIES

Cases

Am. Legion v. Am. Humanist Ass’n,

588 U.S. 29 (2019) .......................................... 4, 7, 23

Cave v. Jester,

___ F. Supp. 3d ___, 2026 WL 916187

(E.D. Ark. Mar. 31, 2026), appeal filed

No. 26-1829 (8th Cir.)............................................. 33

City of Ocala v. Rojas,

143 S. Ct. 764 (2023) .............................................. 23

Croft v. Perry,

624 F.3d 157 (5th Cir. 2010) .................................. 24

Diamond v. Charles,

476 U.S. 54 (1986) .................................................. 23

FDA v. All. for Hippocratic Med.,

602 U.S. 367 (2024) ................................................ 23

Firewalker-Fields v. Lee,

58 F.4th 104 (4th Cir. 2023)............................... 2, 28

Forney v. Apfel,

524 U.S. 266 (1998) ............................................ 3, 35

Hilsenrath ex rel. C.H. v. Sch. Dist. of Chathams,

136 F.4th 484 (3d Cir. 2025) .............................. 2, 28

Indiana Civil Liberties Union v. Braun,

No. 1:00-cv-00811 (S.D. Ind. Dec. 29, 2025) .......... 33

ix

Kennedy v. Bremerton School District,

597 U.S. 507 (2022) ................................ 2, 26, 28, 29

Lemon v. Kurtzman,

403 U.S. 602 (1971) ................................................ 10

Mahmoud v. Taylor,

606 U.S. 522 (2025) ...................................... 2, 21, 31

Moody v. NetChoice, LLC,

603 U.S. 707 (2024) ................................................ 25

Nathan v. Alamo Heights Indep. Sch. Dist.,

157 F.4th 713 (5th Cir. 2025)................................. 17

Nathan v. Alamo Heights Indep. Sch. Dist.,

795 F. Supp. 3d 910 (W.D. Tex. 2025) ................... 16

Roake v. Brumley,

154 F.4th 329 (5th Cir. 2025)................................. 16

Roake v. Brumley,

No. 25A1239 (U.S. May 7, 2026) .............................. 2

Stinson v. Arkansas,

No. 26-1722 (8th Cir. filed Apr. 14, 2026) ............. 32

Stone v. Graham,

449 U.S. 39 (1980) ............................................ 10, 26

Trump v. New York,

592 U.S. 125 (2020) ................................................ 20

x

Valley Forge Christian Coll. v. Americans United for

Separation of Church & State, Inc.,

454 U.S. 464 (1982) ................................................ 23

Van Orden v. Perry,

545 U.S. 677 (2005) .................................. 4, 5, 17, 21

Vill. of Hoffman Ests. v. Flipside, Hoffman Ests., Inc.,

455 U.S. 489 (1982) ................................................ 24

Statutes

28 U.S.C. § 1254(1) ...................................................... 3

La. R.S. § 17:2124 .......................................... 4, 5, 6, 21

Other Authorities

2025–26 Tenn. Pub. Acts, ch. 924 (May 14, 2026) ... 32

Ala. Act No. 2026-428 (Apr. 13, 2026) ...................... 32

Courtroom Friezes: South and North Walls, Office

of the Curator, Supreme Court of the United

States, perma.cc/BJV5-3GLL................................... 4

H.B. 71 Guidance for Louisiana Schools, Office of

the Attorney General (Jan. 3, 2025),

perma.cc/N2TH-GL87 ............................................ 12

Ky. H.J. Res. 15 (Mar. 27, 2025) ............................... 33

Main Reading Room, Library of Congress,

perma.cc/PY3S-QZVX .............................................. 5

xi

Constitutional Provisions

U.S. Const. art. III, § 2 .............................................. 20

1

CONDITIONAL PETITION FOR

WRIT OF CERTIORARI

In 2024, the Louisiana Legislature passed H.B. 71,

which requires the display of the Ten Commandments

in public school classrooms. In 2025, the Texas Legislature enacted S.B. 10, which also requires the display

of the Ten Commandments in public school classrooms. In the proceedings below, plaintiffs (represented by the same attorneys) filed facial challenges

to both laws under the Establishment Clause and the

Free Exercise Clause, asserting materially identical

arguments. They filed those facial challenges before

any plaintiff had seen a Ten Commandments display

on their classroom wall—and even though, as to Louisiana’s law, Louisiana school governing authorities

had not yet exercised their statutory discretion to determine the nature and context of the displays.

Two district courts nonetheless granted preliminary injunctions against the enforcement of both laws.

After a Fifth Circuit panel upheld the injunction

against Louisiana officials’ enforcement of H.B. 71,

the en banc Fifth Circuit vacated that decision,

granted en banc review, and consolidated appeals regarding both laws for oral argument because they

“concern[] the same issues.” App.432a n.52.

The en banc Fifth Circuit subsequently vacated the

two preliminary injunctions. It did so first in Louisiana’s case, Roake v. Brumley, where an en banc majority vacated the injunction against the enforcement

of H.B. 71 on ripeness grounds (but did not reverse and

render a judgment of dismissal as Louisiana requested). Two months later, the Fifth Circuit decided

2

Texas’s case, Nathan v. Alamo Heights Independent

School District, where an en banc majority found the

challenge to S.B. 10 ripe by distinguishing Louisiana’s

law, but vacated the injunction on the merits (and rendered a judgment of dismissal)—relying on the Roake

en banc opinion and rejecting the Roake panel opinion

throughout.

There is no need for this Court’s intervention. That

is principally because the Fifth Circuit’s exhaustive

Roake and Nathan decisions are correct. Those decisions are a tour de force, applying basic Article III

principles and faithfully implementing this Court’s directives in Kennedy v. Bremerton School District, 597

U.S. 507 (2022), and Mahmoud v. Taylor, 606 U.S. 522

(2025). And in reaching its conclusions, the Fifth Circuit expressly aligned itself with the Third and Fourth

Circuits, ensuring a circuit consensus rather than a

circuit conflict. See, e.g., App.409a (citing Hilsenrath

ex rel. C.H. v. Sch. Dist. of Chathams, 136 F.4th 484

(3d Cir. 2025); Firewalker-Fields v. Lee, 58 F.4th 104

(4th Cir. 2023)). Further, this Court’s intervention not

only is unwarranted but also would be premature

given the active percolation of these issues now ongoing in the lower courts.

Counsel for the Roake and Nathan plaintiffs, however, have represented that they may seek this Court’s

review. See Appl. at 5, Roake v. Brumley, No. 25A1239

(U.S. May 7, 2026) (seeking an extension of time “to

align the briefing of any petitions filed in these cases”).

If they do so, it is possible that they will seek review

in only one case, giving the Court a blinkered view of

the consolidated proceedings below. That incomplete

picture would handicap this Court’s consideration in a

3

context where the Fifth Circuit’s two decisions are

joined at the hip.

Louisiana thus files this conditional petition for

writ of certiorari—conditional upon this Court’s consideration and grant of any petition for writ of certiorari arising out of Nathan. To be clear, this is a purely

protective measure: This Court should deny any petition to review the Fifth Circuit’s decisions in Roake

and Nathan. But, if the Court were inclined to grant

review, it should consider both cases together just as

the Fifth Circuit did, to ensure that the full array of

relevant factual and legal arguments is squarely before the Court. In that circumstance, Louisiana would

urge the Court to affirm the judgment below and add

the relief that Louisiana requested but did not receive:

outright dismissal of the Roake lawsuit. See Forney v.

Apfel, 524 U.S. 266, 271 (1998) (a prevailing party that

receives “only half a loaf” of relief is entitled to appeal).

OPINIONS BELOW

The Fifth Circuit’s en banc opinion (App.1a–60a) is

reported at 170 F.4th 292. The Fifth Circuit’s panel

opinion (App.61a–125a) is reported at 141 F.4th 614.

The district court’s opinion (App.126a–376a) is reported at 756 F. Supp. 3d 93.

JURISDICTION

The Fifth Circuit issued its en banc decision on

February 20, 2026. App.1a–60a. This Court has jurisdiction under 28 U.S.C. § 1254(1).

4

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Establishment Clause and Free Exercise

Clause of the First Amendment provide: “Congress

shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof[.]” U.S.

Const. amend. I.

The text of Louisiana’s Ten Commandments law,

La. R.S. § 17:2124, is reproduced at App.528a–34a.

STATEMENT OF THE CASE

A. The Ten Commandments

The Ten Commandments “have historical significance as one of the foundations of our legal system.”

Am. Legion v. Am. Humanist Ass’n, 588 U.S. 29, 53

(2019); accord Van Orden v. Perry, 545 U.S. 677, 690

(2005) (plurality op.) (explaining that “the Ten Commandments ... have an undeniable historical meaning”). Indeed, the Commandments not only undergird

longstanding prohibitions on murder, theft, perjury,

and the like, but also substantiate the central claim in

one of our founding documents—that there is a transcendent and ultimate source of rights and duties that

is not the government. See Decl. of Indep. ¶ 2.

Perhaps unsurprisingly, then, our Nation has long

displayed the Ten Commandments in prominent public spaces. For example, for nearly a century, a sculpture of Moses has adorned this Court’s own courtroom

as one of the “great lawgivers of history”—holding the

Ten Commandments. Courtroom Friezes: South and

North Walls, Office of the Curator, Supreme Court of

the United States, perma.cc/BJV5-3GLL. And in the

5

Library of Congress, a bronze statue of Moses holding

the Ten Commandments stands tall over the Main

Reading Room. Main Reading Room, Library of Congress, perma.cc/PY3S-QZVX. Today, similar Ten Commandments displays have been identified in “almost

every state.” Br. for United States as Amicus Curiae

at *11, *1a–7a, Van Orden v. Perry, 545 U.S. 677

(2005), (No. 03-1500), 2005 WL 263790 (“non-exhaustive survey”).

B. Louisiana’s H.B. 71

In 2024—and in keeping with that tradition—Louisiana enacted H.B. 71, which requires public schools

(including public colleges and universities) to display

the Ten Commandments in each classroom. La. R.S.

§ 17:2124 (2024) (reproduced at App.528a–34a). H.B.

71 specifies that the Commandments’ text must be

“identical” to the text on the monument upheld in Van

Orden, 545 U.S. 677; printed in “large, easily readable

font” on “a poster or framed document that is at least

eleven inches by fourteen inches”; and “the central focus” of the display. § 17:2124(A)(6), (B)(1), (C)(1);

App.529a, 530a–31a, 534a. Each display must include

a statutorily required, three-paragraph “context statement” about the history of the Ten Commandments in

American

public

education.

§ 17:2124(B)(3);

App.532a–33a.

It is up to “[e]ach governing authority” to determine “[t]he nature of the display,” though H.B. 71 provides schools with examples of documents to consider

displaying alongside the Ten Commandments, such as

“the Mayflower Compact, the Declaration of Independence, and the Northwest Ordinance.” § 17:2124(B)(1),

6

(B)(4); App.530a, 533a. No school governing authority

is required to pay for the displays but must accept either

donated

displays

or

donated

funds.

§ 17:2124(B)(5); App.533a.

H.B. 71 requires the Louisiana State Board of Elementary and Secondary Education (BESE) to “adopt

rules and regulations in accordance with the Administrative Procedure Act” for the law’s implementation;

and the Department of Education (DOE) to “identify

appropriate [compliance] resources” that are “free of

charge” and list them on the Department’s “website.”

§ 17:2124(B)(6)(a), (b); App.533a.

C. District Court Proceedings

1. Five days after Louisiana Governor Jeff Landry

signed H.B. 71 into law in June 2024, the Roake plaintiffs—public-school parents and their minor children—sued the Louisiana State Superintendent of Education, the BESE members in their official capacities,

and five parish school boards. They claim that H.B. 71

facially violates the First Amendment’s Establishment Clause and Free Exercise Clause. CA5.ROA.76–

79.

As to the Establishment Clause, the Roake plaintiffs assert that H.B. 71 “prescrib[es] an official religious text for schoolchildren to venerate.”

CA5.ROA.77. And as to the Free Exercise Clause, they

allege that H.B. 71 “substantially burdens the[ir] religious exercise” by “pressuring them to suppress or

limit expression of their religious or nonreligious backgrounds, beliefs, or practices” or to “adopt[] the state’s

favored religious scripture.” CA5.ROA.78–79.

7

Two weeks later, the Roake plaintiffs sought a preliminary injunction barring the named defendants

(and others not before the district court) from enforcing and following H.B. 71. CA5.ROA.239–46. They

also relied on an “expert” report from law professor

Steven Green, the former legal director of the plaintiffs’ counsel, Americans United for Separation of

Church and State, who opined, contra American Legion, that “the Ten Commandments are not a foundation of the American government or legal system.”

CA5.ROA.852.1

2. Because the ink was hardly dry on H.B. 71,

“DOE staff members d[id] not yet know how

DOE ... w[ould] implement H.B. 71.” CA5.ROA.477–

78. As part of Louisiana’s motion to dismiss and opposition to a preliminary injunction, however, DOE submitted a declaration stating that it “w[ould] likely consider” certain “illustratives ... or variations of them.”

Id. Those illustratives (letter-size versions compiled at

CA5.ROA.480–94 and reproduced in the district

court’s decision at App.214a–26a) demonstrate the unlimited universe of potential displays that Louisiana

1 As the Fifth Circuit would later note in highlighting “the

risk of appointing someone as an expert in ‘legal history,’” Green

previously wrote the exact opposite. App.437a n.56. And in fact,

he testified before the district court that his opinions are “inconsistent with th[e] statements [of the Supreme Court] and established law,” opining that “[m]any of the Justices of the Supreme

Court are not historians,” and commenting on American Legion’s

discussion of the Ten Commandments: “It’s just his [Justice

Alito’s] opinion, I guess.” CA5.ROA.2376, 2419; cf. Am. Legion,

588 U.S. at 35, 53 (Ten Commandments discussion joined by Roberts, C.J., and Breyer, Kagan, and Kavanaugh, JJ.).

8

school governing authorities might adopt and post in

compliance with H.B. 71. To take just a few:

A school governing authority might adopt a display

(App.215a) explaining religion’s role in American legal

history, by highlighting not just the Ten Commandments but also the Mayflower Compact, the Northwest Ordinance, and the Declaration of Independence:

A school governing authority also might adopt a

display (App.226a) explaining this Court’s decision in

Van Orden:

9

Or, a school governing authority might adopt displays invoking inspiring leaders from our Nation’s history—such as a display (App.221a) comparing Moses’s

Ten Commandments with Martin Luther King, Jr.’s

“Ten Commandments for Non-Violence”:

Similarly, a school governing authority might

adopt a display (App.220a) highlighting Justice Ginsburg’s thoughts on the Ten Commandments from a

school paper that she republished in 2016 in My Own

10

Words, where she described the English Bill of Rights,

the Ten Commandments, the Declaration of Independence, and the Magna Carta as “four great documents”

in the history of the world:

The possibilities truly are endless.

3. Notwithstanding the vast unknowns in this case,

the district court issued a decision on November 12,

2024, denying Louisiana’s motion to dismiss and

granting a preliminary injunction, finding H.B. 71

“FACIALLY UNCONSTITUTIONAL and UNCONSTITUTIONAL IN ALL APPLICATIONS.” App.375a.

The court rejected Louisiana’s ripeness and standing arguments, reasoning that, although the Roake

plaintiffs have never seen an H.B. 71 display on their

school walls, “the risk of a future encounter” with

H.B. 71 displays is “certainly impending.” App.173a.

On the merits, the court held that H.B. 71 “runs afoul

of Stone v. Graham,” 449 U.S. 39 (1980), a decision in

which this Court applied the secular-purpose prong of

Lemon v. Kurtzman, 403 U.S. 602 (1971), to strike

11

down a Kentucky law requiring displays of the Ten

Commandments

in

public-school

classrooms.

App.132a; see App.278a (based on Stone “alone, the

Court could deny AG Defs. MTD”).

The court claimed to be avoiding “the now-defunct

Lemon test” itself. App.256a. But it nevertheless concluded that “any purported secular purpose [of

H.B. 71] was not sincere but rather a sham,” and that

the actual purpose was “overtly religious,” as demonstrated by “the legislative history and fundraising efforts of the Governor.” Id.; App.131a & n.5. The court

also concluded that, “even if [it] did examine [the

Roake plaintiffs’ Establishment Clause] claim under”

this Court’s current approach, the motion to dismiss

would still be denied and the Roake plaintiffs would

still be entitled to a preliminary injunction. App.278a.

On this point, the court relied extensively on Green’s

report and testimony, which it found “convincing, logical, and consistent with the Court’s own review of the

evidence.” App.352a.

The court further held that the Roake plaintiffs

were likely to succeed on their free-exercise claim because their “testimony confirms, inter alia, [their] religious or nonreligious beliefs, the manner in which

the Act substantially burdens those beliefs, and the

ways in which [the] Act is inconsistent with any historical tradition by being discriminatory and coercive.”

App.353a.

D. Fifth Circuit Panel Proceedings

1. Louisiana immediately appealed that decision to

the Fifth Circuit. While that appeal was pending, the

Louisiana Attorney General issued a January 2025

12

guidance letter urging each Louisiana school governing authority to “select, and display at its discretion,

the four displays attached to this guidance letter.”

H.B. 71 Guidance for Louisiana Schools, Office of the

Attorney General (Jan. 3, 2025), perma.cc/N2THGL87 (Letter). Full-size versions are available at that

link. The displays were included in briefing below, see

CA5.ECF.271 at 7–10; were distributed to the en banc

Fifth Circuit as bench exhibits and discussed during

oral argument; and are reproduced here.

One discusses the Supreme Court building’s architecture and its focus on great lawgivers like Moses:

One discusses Moses and other notable figures featured in the House Chamber in the United States Capitol:

13

A third discusses religion’s role in American public

education, keying on the statutorily required context

statement and its focus on Noah Webster and William

McGuffey:

And the final one highlights this Court’s notable

decisions regarding the Religion Clauses of the Constitution:

14

Beyond recommending that schools use these displays, the Attorney General’s guidance letter states

that “each display should be between the statutory

minimum size, 11 inches by 14 inches, and 18 inches

by 24 inches.” Letter at 1. More, “[t]o avoid any possibility of confusion regarding whether displays are attributable to individual teachers, a school should place

its displays on any classroom wall other than behind

a teacher’s desk, podium, or location from which a

teacher ordinarily delivers instruction.” Id. And finally, a school should “place its displays among others

reflecting educational content.” Id. at 2.

2. Despite the growing record showing that the

Roake plaintiffs’ facial challenges could not possibly

account for the universe of ways that H.B. 71 may be

constitutionally implemented, the Fifth Circuit panel

affirmed the district court’s preliminary injunction.

On jurisdiction, the Roake panel acknowledged

that no parent or student had seen an H.B. 71 display.

But the panel nevertheless concluded that it had “sufficient information for a fact-intensive and context-

15

specific analysis,” that the Roake plaintiffs “demonstrated standing to assert their Establishment Clause

claims” based solely on H.B. 71’s text, and that the

panel “must follow binding precedent” authorizing offended-observer standing. App.74a, 86a, 90a.

As for the merits, the Roake panel concluded that

“Stone v. Graham is controlling.” App.108a. The

panel’s entire analysis on that score was a secularpurpose inquiry under Lemon: The panel attacked

“Louisiana’s purported legislative purpose” as a

“sham” and as “implausible [and] inadequate.”

App.103a–08a (citation omitted). And in a bald footnote, the panel asserted that “[w]e do not undertake

this analysis to revive Lemon, but only for the limited

purpose of deciding whether Stone’s facts and reasoning control.” App.104a n.21.

In the alternative, the Roake panel held that H.B.

71 would fail scrutiny under Kennedy as well. The

panel expressly rejected Louisiana’s argument that,

“under Kennedy, the threshold question in an Establishment Clause analysis is whether the challenged

practice implicates historical hallmarks of religious

establishments.” App.108a. Instead, the panel believed that “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.” App.110a. Having framed the inquiry that way, the panel summarily credited the

Roake plaintiffs’ allegations that no such tradition exists, and so they “adequately pleaded an Establishment Clause violation under Kennedy.” App.111a.

16

The panel did not address the Free Exercise Clause

claim. App.95a n.16. And now-retired Judge Dennis

wrote separately to say both that the Roake plaintiffs

“have standing under settled Supreme Court precedents recognizing ‘offender observer’ standing in Establishment Clause cases” and that Kennedy “did [not]

eliminate the component parts of Lemon.” App.118a.

E. Fifth Circuit En Banc Proceedings

1. That brings us to the immediate proceedings below. Louisiana sought en banc review of the Roake

panel decision, which the en banc Fifth Circuit vacated in October 2025 in granting en banc review. See

Roake v. Brumley, 154 F.4th 329 (5th Cir. 2025).

In the meantime, Texas was facing its own litigation (filed by the same attorneys asserting the same

theories) with respect to Texas’s Ten Commandments

law. Before the Fifth Circuit vacated the Roake panel

decision, a Texas district court enjoined the enforcement of Texas’s law, relying directly and extensively

on the Roake panel decision. See Nathan v. Alamo

Heights Indep. Sch. Dist., 795 F. Supp. 3d 910, 939

(W.D. Tex. 2025) (“The Fifth Circuit rejected each of

[Texas’s] arguments in Roake[.]”). Texas then appealed Nathan to the Fifth Circuit and sought initial

en banc review “alongside” Roake. CA5.ECF.248 at 1.

Louisiana endorsed that approach because it would

place “the fulsome records developed across both

cases” before the en banc Fifth Circuit. Id. The Fifth

Circuit granted Texas’s request shortly after granting

en banc review in Roake, and directed that Nathan

“shall be heard by the court en banc with oral argument along with 24-30706, Roake v. Brumley.” Nathan

17

v. Alamo Heights Indep. Sch. Dist., 157 F.4th 713, 714

(5th Cir. 2025).

2. Following consolidated en banc oral argument in

January 2026, the Fifth Circuit first issued its decision in Roake. Discussed more fully below, that decision rejected the entirety of the Roake panel’s ripeness

analysis, vacating the district court’s injunction on

that ground alone.

The Fifth Circuit explained that Article III limits

federal courts to deciding actual cases and controversies. App.5a. But there are too many unknowns in this

case, especially given that the constitutionality of a

Ten Commandments display “turns on ‘the context of

the display’ and ‘how the text is used.’” Id. (citing Van

Orden, 545 U.S. at 701 (Breyer, J., concurring in the

judgment)). No one knows the content of any particular Ten Commandments display that a plaintiff might

see at some unknown date, nor does anyone know how

that display might be oriented, contextualized, or referenced (or not referenced) by a teacher in a particular

classroom. App.6a.

“In the absence of this evidence,” the Fifth Circuit

concluded, “we are not able to conduct the fact-intensive and context-specific analysis required by the Supreme Court’s Ten Commandments cases.” Id. (citation modified). What the Roake plaintiffs demand “is

not judging” but “guessing.” App.9a. And the “Article

III judicial power stops there” because the Roake

plaintiffs’ facial claims are “nonjusticiable.” App.11a.

On that basis, the en banc Fifth Circuit vacated the

preliminary injunction, but did not reverse or render

judgment for Louisiana.

18

3. Two months later, the en banc Fifth Circuit issued its decision in Nathan—and in Nathan, the en

banc court rejected the entirety of the Roake panel’s

merits analysis.

The Fifth Circuit began with Article III jurisdiction, distinguishing Texas’s law from Louisiana’s in

“three key ways”: (1) Louisiana’s statute expressly

“delegates” to school officials discretion to determine

the nature of the display, while Texas’s does not;

(2) Louisiana’s statute “specifies that local displays

may (or may not) incorporate other historical documents,” while Texas’s “mandates that displays ‘include only’ the provided text of the Commandments”;

and (3) Louisiana’s statute “does not specify where

displays must appear,” while Texas’s “requires posting

them in ‘a conspicuous place.’” App.392a–93a. Unlike

in its Roake analysis, therefore, the Fifth Circuit believed that the Texas law “establishes a uniform display requirement we can evaluate as a matter of law

without further factual development.” App.393a.2

The Fifth Circuit followed that ripeness determination with a rejection of the Establishment Clause

and Free Exercise Clause claims in these cases, including a thorough takedown of the Roake panel decision discussed more fully below.

Beginning with the Establishment Clause, the

Fifth Circuit observed that the Texas district court

had “followed our court’s since-vacated panel decision”

2 Judges Oldham and Willett declined to join this discussion

and the en banc majority’s finding of Article III standing because,

in their view, Article III bars these plaintiffs from resting on offended-observer standing. App.447a.

19

in Roake. App.386a. But the Roake panel was wrong.

It was wrong about Stone being controlling because

“Stone depended entirely on Lemon and nothing but

Lemon.” App.398a. “[W]e do not have the option of ignoring the Supreme Court’s express directives, [and]

we cannot continue applying Lemon” after Kennedy,

observed the Fifth Circuit. App.402a. The Roake panel

was also wrong about the proper Establishment

Clause test post-Kennedy. This Court has never endorsed the “bizarre view” that “any modern practice

not supported by a founding-era tradition does violate

the Establishment Clause.” App.435a. Instead, “[t]he

correct analysis”—endorsed by this Court and applied

by the Third and Fourth Circuits—“is to ask whether

a challenged law shares the ‘hallmarks of religious establishments the framers sought to prohibit when

they adopted the First Amendment.’” App.436a. And

there is no serious claim that the passive display of a

religious symbol implicates those hallmarks.

On the Free Exercise Clause, the Fifth Circuit recognized that “the core of a free-exercise violation—a

substantial burden on religious belief or practice—is

missing.” App.441a. The Ten Commandments laws require nothing of these plaintiffs; they simply require a

passive display, which is completely unlike, for example, the disruptive reeducation activities this Court invalidated in Mahmoud. Accordingly, the Free Exercise

Clause challenge fails.

With these findings, the en banc Fifth Circuit vacated the Texas district court’s injunction, reversed,

and rendered judgment dismissing the Nathan suit.

20

REASONS FOR GRANTING THE

CONDITIONAL PETITION

I. THIS COURT’S REVIEW IS UNWARRANTED.

The Fifth Circuit’s careful decisions in the Roake

and Nathan cases are correct—and there is no reason

to disturb them. As to Roake itself, that is principally

because the challenges are non-justiciable. And even

if that were not so, the Establishment Clause and Free

Exercise Clause facial challenges fail on the merits, as

the Fifth Circuit held in Nathan. There also is no circuit split, and no urgency for this Court to intervene

given the active percolation of these issues that is ongoing in the lower courts. For all of these reasons,

therefore, there is no need for this Court’s review.

A. This Case Is Non-Justiciable.

Start with Article III. The Fifth Circuit correctly

held that the Roake case does not get off the ground

because it is not ripe. And as Judges Oldham and Willett separately wrote, the Roake and Nathan plaintiffs

also lack Article III standing. Either way, therefore,

Article III prohibits this case from proceeding.

1. The Fifth Circuit rightly ended the Roake appeal

on ripeness. “Article III limits federal courts to resolving ‘Cases’ and ‘Controversies,’” the court wrote.

App.5a (citing U.S. Const. art. III, § 2). “Because of

that limitation, the issues we decide must be ripe—not

dependent on contingent future events that may not

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

Id. (citing Trump v. New York, 592 U.S. 125, 131

(2020) (per curiam)) (quotation marks omitted). And

the Roake plaintiffs’ suit fails to meet that standard.

21

Under this Court’s precedents, the constitutionality of a Ten Commandments display “turns on ‘the context of the display’ and ‘how the text is used.’” Id. (citing Van Orden, 545 U.S. at 701 (Breyer, J., concurring

in the judgment)). But those are unknowns in this

case. Yes, “H.B. 71 sets certain ‘minimum requirement[s]’ regarding the text, size, and accompanying

‘context statement’ of the displays,” but “it leaves ‘[t]he

nature of the display’ entirely to the discretion of local

school boards.” App.5a–6a (citing La. R.S.

§ 17:2124(B)(1)–(3)). No one “know[s], for example,

how prominently the displays will appear, what other

materials might accompany them, or how—if at all—

teachers will reference them during instruction.”

App.6a. And “[m]ore fundamentally,” no one “even

know[s] the full content of the displays themselves.”

Id. As a result, the Fifth Circuit concluded, “we cannot

evaluate ‘how the text is used,’ because we do not yet

know—and cannot yet know—how the text will be

used.” Id. (citation omitted). “And ‘[i]n the absence of

this evidence, we are not able to conduct the fact-intensive and context-specific analysis required by’ the

Supreme Court’s Ten Commandments cases.” Id.

“That same evidentiary gap,” the Fifth Circuit continued, “forecloses the parents’ Free Exercise claims,

because ‘the question of whether a law substantially

interferes with the religious development of a child

will always be fact-intensive,’ requiring courts to ‘consider the specific context in which the instruction or

materials at issue are presented.’” App.6a–7a (quoting

Mahmoud, 606 U.S. at 550) (citation modified).

That was the ballgame. For rendering a judicial determination “that every possible H.B. 71 display” is

22

unconstitutional “would oblige [a court] to hypothesize

an open-ended range of possible classroom displays

and then assess each under a context-specific standard that depends on facts not yet developed and, indeed, not yet knowable.” App.9a. That “is not judging,”

the Fifth Circuit recognized, “it is guessing.” Id. And

the “Article III judicial power stops there” because the

Roake plaintiffs’ facial claims are “nonjusticiable.”

App.11a.

2. Although the en banc Fifth Circuit had no need

to identify other Article III problems, Judges Oldham

and Willett separately—and correctly—endorsed Louisiana’s independent argument that the Roake and

Nathan plaintiffs lack Article III standing. Their

claims “hinge on the mistaken premise that individuals can sue because they are offended—a proposition

that is wrong as a matter of Constitutional structure

and Supreme Court precedent.” App.447a. Indeed,

“[t]his case is a textbook offended observer case.” Id.

“From top to bottom, the idea is that the plaintiffs

(1) worry that they will one day see a poster; (2) worry

that they might find that poster offensive; so (3) they

invoke federal jurisdiction for protection from potential, hypothetical future offenses.” App.448a.

But there is no basis in Article III or this Court’s

precedents for offended-observer standing. “[T]here is

no historical comparator to offended-observer standing” that might suggest that this is a legitimate “basis

for suit in American courts.” App.449a. In fact, “the

opposite is true.” Id. Time and again, this Court has

reiterated that “[t]he presence of a disagreement, however sharp and acrimonious it may be, is insufficient

23

by itself to meet Art[icle] III’s requirements.” Id. (quoting Diamond v. Charles, 476 U.S. 54, 62 (1986)); see

FDA v. All. for Hippocratic Med., 602 U.S. 367, 396

(2024) (holding that “sincere legal, moral, ideological,

and policy objections ... alone do not establish a justiciable case or controversy in federal court”); Valley

Forge Christian Coll. v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 485 (1982)

(reasoning that “the psychological consequence presumably produced by observation of conduct with

which one disagrees” is not a cognizable injury-infact).

For that reason, Judges Oldham and Willett joined

the growing “chorus of judges from across the country

[that] have rejected offended-observer standing.”

App.450a (citing, among others, Am. Legion, 588 U.S.

at 80–83 (Gorsuch, J., concurring in the judgment);

City of Ocala v. Rojas, 143 S. Ct. 764, 766 (2023)

(Thomas, J., dissenting from denial of certiorari)).

“Plaintiffs have no basis to invoke the federal judicial

power merely because they are offended by a holy text

that is a cornerstone of Western civilization.”

App.454a–55a. And the Roake plaintiffs’ theory in this

case—which extends offended-observer standing to future anticipatory offense—is as clear a warning signal

as any that this Court must “clarify that offended observer standing has no place in our constitutional order.” App.455a.

Whether on ripeness or on standing, Article III

forecloses the Roake plaintiffs’ suit—and the Fifth Circuit correctly held as much.

24

B. Plaintiffs Have No Viable Facial Claims.

The Fifth Circuit likewise saw no need to reach the

merits of the Roake plaintiffs’ Establishment Clause

and Free Exercise Clause claims. But, as the Fifth Circuit made clear in Nathan, those claims are dead in

the water. That is principally because of the demanding facial standard in this pre-enforcement context,

which the plaintiffs come nowhere close to meeting. It

is also because the plaintiffs have no viable claims under a straightforward application of this Court’s decisions in Kennedy and Mahmoud.

1. The Roake plaintiffs’ threshold merits problem

is their inability to surmount the high facial standard.

Everyone agreed below that, because the plaintiffs

“have asserted a facial challenge to H.B. 71,” they

“must show that there is no set of circumstances under

which [H.B. 71] is constitutional.” App.95a (quoting

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

App.134a. As Judges Oldham and Willett explained

(hearkening back to this Court’s own recent precedent), “[f]acial challenges are an uphill battle” and

they are “disfavored.” App.452a (citation omitted).

That daunting standard, moreover, is more daunting still because this is a pre-enforcement challenge—

and this Court “has made it difficult to bring a challenge before States have even attempted to enforce the

[challenged] law.” App.453 (citing Vill. of Hoffman

Ests. v. Flipside, Hoffman Ests., Inc., 455 U.S. 489,

497–504 (1982)). By asking the federal courts “to combine a facial and pre-enforcement challenge,” the

plaintiffs have asked for adjudication of a nakedly

speculative question: “whether these plaintiffs with a

25

hypothetical injury about a hypothetical sign might

ever face a hypothetical situation where the law is constitutional.” App.454a.

To ask that question is to answer it. It would be

passing strange to conclude, for example, that a poster

describing this Court’s First Amendment cases somehow violates the Constitution simply because the

poster features a photo of the Ten Commandments.

Yet that is the logical conclusion of the Roake plaintiffs’ theory. Asked by Chief Judge Elrod below specifically about how this poster could be deemed to violate

the Establishment Clause, the Roake plaintiffs’ counsel implausibly claimed that the poster is unconstitutionally “coercive” “because the central focus is the

Ten Commandments.” CA5 Oral Arg. Audio at

1:14:40–15:40.

These facial challenges thus cannot survive the facial standard. Little more would be necessary to dispose of them—and to affirm the judgment below. Cf.,

e.g., Moody v. NetChoice, LLC, 603 U.S. 707, 717

(2024) (“Today, we vacate both decisions for reasons

26

separate from the First Amendment merits, because

neither Court of Appeals properly considered the facial nature of NetChoice’s challenge.”).

2. In any event, the Roake plaintiffs fare no better

on the merits of their Establishment Clause claim.

The Fifth Circuit reasoned as much in two key steps:

(a) rejecting the notion that Lemon via Stone v. Graham continues to supply the governing test; and

(b) following this Court’s directive in Kennedy to adjudicate Establishment Clause challenges based on the

historical hallmarks of an establishment of religion.

a. The plaintiffs’ mantra throughout this litigation

has been that this Court’s decision in Stone controls

this litigation—and that the lower courts would be defying this Court’s precedent to conclude otherwise. As

the Fifth Circuit recognized, the exact opposite is true.

This Court could not have been clearer in Kennedy

when “it announced it had ‘long ago abandoned

Lemon’” and “Lemon’s ‘offshoot,’ known as the ‘endorsement test,’” rejecting reliance on “‘Lemon and its

progeny.’” App.396a, 397a (citing Kennedy, 597 U.S. at

534). The Court’s directive, of course, is that, “when

analyzing Establishment Clause claims, courts [must]

not consider any of the three Lemon prongs—whether

a law has a secular purpose, whether it advances or

inhibits religion, and whether it excessively entangles

government and religion.” App.397a.

But that is the problem with Stone: “Stone depended entirely on Lemon and nothing but Lemon.”

App.398a. Specifically, it began by applying Lemon’s

secular-purpose prong. See 449 U.S. at 41 (“We conclude that Kentucky’s statute requiring the posting of

27

the Ten Commandments in public schoolrooms had no

secular legislative purpose, and is therefore unconstitutional.”). And it ended by applying Lemon’s secularpurpose prong. Id. at 42–43 (“We conclude that [the

Kentucky statute] violates the first part of the Lemon

v. Kurtzman test, and thus the Establishment Clause

of the Constitution.”).

“Remove the three-part Lemon test, and Stone’s

reasoning vanishes.” App.398a. Put otherwise, the

only way to apply Stone is to apply Lemon. That is why

the en banc Fifth Circuit criticized the Roake panel for

applying Lemon’s secular-purpose test while protesting that “[w]e do not undertake this [secular-purpose]

analysis to revive Lemon, but only for the limited purpose of deciding whether Stone’s facts and reasoning

control.” App.398a–99a. “That makes no sense,” said

the en banc Fifth Circuit. App.399a. “Stone’s ‘reasoning’ is the Lemon test, full stop. So, what the Roake

panel denied it was doing (‘reviving Lemon’) and what

it admitted it was doing (‘deciding whether Stone’s

facts and reasoning control’) are the same thing.” Id.

Because Stone is bad law after Kennedy, the Fifth

Circuit was duty-bound to recognize as much—and it

did. “The notion that we must nonetheless continue to

apply any part of Lemon flies in the face of [this

Court’s] explicit directives,” said the court. App.401a.

“Because we do not have the option of ignoring the Supreme Court’s express directives, we cannot continue

applying Lemon.” App.402a. Or, otherwise put: “Plaintiffs ignore [Lemon’s] obituary. Under the guise of applying Stone, they would have us exhume Lemon and

parade its corpse around the Federal Reporter. That

we cannot do.” App.404a.

28

b. With Stone interred alongside Lemon, the Fifth

Circuit correctly recognized that its task was to articulate and apply the appropriate Establishment Clause

test in the wake of Kennedy. Kennedy itself instructed

that “[t]he Clause ‘must be interpreted by reference to

historical practices and understandings,’ using an interpretation that ‘faithfully reflects the understanding

of the Founding Fathers’ and ‘focuses on original

meaning and history.’” App.405a (citing Kennedy, 597

U.S. at 535–36).

On that score, the Fifth Circuit linked arms with

“two sister circuits”—the Third and Fourth Circuits—

who have agreed that “Kennedy’s analysis distills to

this inquiry: Have plaintiffs ‘prov[en] a set of facts

that would have historically been understood as an establishment of religion’?” Id. (citing Hilsenrath, 136

F.4th at 491 n.54; Firewalker-Fields, 58 F.4th at 122

n.7); accord App.409a (“If a modern law is challenged

under the Establishment Clause, courts must test that

law against what the founding generation would have

regarded as an establishment of religion.”). The Fifth

Circuit then walked through a detailed historical account of what the founding generation understood an

establishment of religion to be.

That account maps onto the “hallmarks” of founding-era establishments to which the Kennedy Court alluded: “(1) government control over religious doctrine,

governance, and church personnel; (2) compulsory

church attendance; (3) compelled financial support,

especially in the form of land grants and religious

taxes; (4) prohibitions on worship in dissenting

churches; (5) use of church institutions for civil functions; and (6) restriction of political participation to

29

members of the established church.” App.422a (citing

Kennedy, 597 U.S. at 537 n.5).

That analysis, the Fifth Circuit observed, is easily

applied here because the Ten Commandments laws

“plainly lack[] the features of founding-era establishments”—e.g., punishment through fines, taxes, and legal disabilities, or regulation of church functions and

personnel. App.424a. Indeed, that is why the plaintiffs

“rely on none of these features of establishments” to

press their Establishment Clause challenge. Id.

Instead, their “principal argument” has been that

these laws “resemble[] historic establishments because [they are] coercive.” Id. That argument seizes on

a line in Kennedy that spoke of “coercion.” But “Kennedy explained that the ‘coercion’ characteristic of establishments consisted of forcing people to ‘attend

church’ or ‘engage in a formal religious exercise.’”

App.425a (citing Kennedy, 597 U.S. at 537) (quotation

marks omitted). And “merely displaying religious text

in a classroom” is “worlds apart” from that type of unconstitutional coercion. Id. Indeed, laws like Louisiana’s and Texas’s “do[] not compel any student to engage in formal religious exercise”—or do anything at

all. App.425a–26a.

Moreover, the plaintiffs “have not identified a

shred of founding-era evidence equating the government’s use of religious text, displays, or symbols with

an establishment of religion.” App.426a. In fact, the

available literature suggests “that no one ‘ever

claimed at the founding that the display of religious

symbols was a form of religious establishment.’” Id. &

n.47. Indeed, such a claim would likely come as a

30

shock to not only the founding generation but also to a

modern generation familiar with widespread religious

imagery across our Nation. See App.426a–28a (detailing examples).

All this ends the plaintiffs’ Establishment Clause

challenge. Under the Third, Fourth, and Fifth Circuits’ uniform precedents, the plaintiffs “bore the burden of showing that the [Ten Commandments] displays would have been understood as a founding-era

establishment.” App.428a. They did not, and could

not, carry that burden—and so their challenge fails.

3. The Roake plaintiffs’ Free Exercise Clause claim

is similarly meritless. The Fifth Circuit made quick

work of that claim because “the core of a free-exercise

violation—a substantial burden on religious belief or

practice—is missing.” App.441a. Everyone “agree[s]

that a key precedent” on this score is Mahmoud.

App.439a. And “[m]easured against Mahmoud,” Louisiana’s and Texas’s laws “fall[] far short of transgressing the Free Exercise Clause.” Id.

Unlike the curriculum and disruptive instruction

at issue in Mahmoud, these Ten Commandments laws

“create[] no religious curriculum designed to shape

children’s beliefs or subvert their parents’ teaching.”

Id. “Teachers are not required or encouraged to offer

religious reflections on the Ten Commandments.” Id.

“Nor are they told to proselytize students who ask

about the displays or disagree with the Commandments.” Id. “Nor are they given lesson plans instructing that certain students (say, atheist, nontheist, pol-

31

ytheist, or agnostic students) are to be told their beliefs are ‘hurtful’ or ‘hateful.’” Id. (quoting Mahmoud,

606 U.S. at 553).

Instead, all these laws “require[] is a poster on a

classroom wall.” App.442a. And while the plaintiffs in

Roake and Nathan “disagree with the poster’s content,” “disagreement alone does not transform [these

laws] into religious coercion—and certainly not into

the [sort of] compulsory sex re-education program invalidated in Mahmoud.” Id. Indeed, “no case suggests

that the mere presence of religious language in a

school display is ipso facto religious coercion.” Id. And

for good reason: Such a rule would prohibit schools

from displaying the Declaration of Independence or

Lincoln’s Second Inaugural Address—or even requiring the recitation of the Pledge of Allegiance. See

App.443a. That, of course, is not the law. And below,

in response to this problem with the plaintiffs’ theory,

their “counsel could only say, ‘that’s obviously not this

case.’” Id.

Plaintiffs’ claim, if credited, would go far beyond

what was at issue in Mahmoud. There, the plaintiffs

were specifically asked about a situation where a

school displays posters that students or their parents

might object to, and the plaintiffs disclaimed any constitutional right to veto those posters. Tr. of Oral Arg.

at 58, Mahmoud v. Taylor, 606 U.S. 522 (2025) (No.

24-297); cf. Mahmoud, 606 U.S. at 568 (maj. op.) (distinguishing “opt outs” from giving parents “substantive control over the curriculum itself”); id. at 625 (Sotomayor, J., dissenting) (“[F]or public schools to function, it is inescapable that some students will be exposed to ideas and concepts that their parents may

32

find objectionable on religious grounds. ... To presume

that public schools must be free from all such exposure

is to presume public schools out of existence.”). Nothing in this Court’s opinion suggests a different answer

here.

C. These Issues Are Actively Percolating in

the Lower Courts.

Even if the plaintiffs’ claims were not plainly meritless, certiorari would be premature. Nathan is the

first post-Kennedy court of appeals decision to grapple

with how to apply Kennedy to a case involving passive

religious displays. And far from indicating any emerging disagreement among the circuits over the proper

understanding of Kennedy, the Fifth Circuit expressly

aligned itself with decisions from the Third and

Fourth Circuits. No circuit has disagreed.

Nor is there likely to be any shortage of future opportunities to consider these issues. Indeed, the specific issue of Ten Commandments displays in public

schools is actively percolating in the lower courts. Like

Louisiana and Texas, Arkansas has passed a law requiring the display of the Ten Commandments in public school classrooms. A challenge to that law is currently pending in the Eighth Circuit. See Stinson v.

Arkansas, No. 26-1722 (8th Cir. filed Apr. 14, 2026).

And two other states—in two additional circuits—

have recently enacted their own versions of laws

providing for Ten Commandments displays in public

schools. See 2025–26 Tenn. Pub. Acts, ch. 924 (May 14,

2026); Ala. Act No. 2026-428 (Apr. 13, 2026).

In light of Kennedy’s clarification of the law, moreover, other Ten Commandments displays are being

33

posted (or reposted) on public property in other contexts. See, e.g., Indiana Civil Liberties Union v. Braun,

No. 1:00-cv-00811 (S.D. Ind. Dec. 29, 2025), ECF 60

(Indiana seeking relief from Lemon-era injunction forbidding Ten Commandments monument on state-capitol grounds); Ky. H.J. Res. 15 (Mar. 27, 2025) (Kentucky re-erecting Ten Commandments monument on

state-capitol grounds). And other challenges to Ten

Commandments displays have already been filed. See,

e.g., Cave v. Jester, ___ F. Supp. 3d ___, 2026 WL

916187 (E.D. Ark. Mar. 31, 2026), appeal filed No. 261829 (8th Cir.). There is no need for the Court to cut

short the process of Kennedy’s reception in the lower

courts. If that process ultimately demonstrates confusion in the lower courts’ understanding of Kennedy,

there will be ample opportunity to grant certiorari

then. But there is no reason to disturb the en banc

Fifth Circuit’s correct application of Kennedy now.

II. IF THE COURT WERE INCLINED TO GRANT NATHAN, IT SHOULD LIKEWISE GRANT ROAKE.

As the foregoing makes clear, there are numerous

reasons why the Fifth Circuit was right to vacate the

Roake and Nathan injunctions. All that goes to show

why there is no need for this Court’s intervention—

and, if the various plaintiffs elect to file cert petitions,

the Court should deny them.

If the Court were inclined to grant any petition

arising from Nathan, however, then the Court should

grant this Roake petition as well. That is so for three

independent reasons.

34

First, this is how the Fifth Circuit approached the

two cases. Only Roake proceeded through both a district court preliminary-injunction decision and a Fifth

Circuit panel decision. When Louisiana sought en

banc review in Roake, Texas filed its initial en banc

petition in Nathan seeking review “alongside”

Roake—and Louisiana expressly endorsed that approach because it would place “the fulsome records developed across both cases” before the en banc Fifth

Circuit. CA5.ECF.248 at 1. That joint request naturally resulted in a consolidated oral argument since

the two cases “concern[] the same issues.” App.432a

n.52. The same approach would thus make sense here.

Second, the Fifth Circuit saw material differences

between Louisiana’s and Texas’s laws—and Louisiana

has a significant interest in defending its own law here

on its own terms. As discussed above, the Fifth Circuit

read Texas’s law to prohibit the contextualization of

the Ten Commandments displays (while Louisiana’s

does not) and to require the conspicuous placement of

the displays (while Louisiana’s does not). Based on

those distinctions, the Fifth Circuit deemed the Nathan challenge ripe but the Roake challenge unripe.

Any proceeding in this Court would thus begin

with a serious Article III question, including not just

ripeness but also the standing of “these plaintiffs [who

have sued over] a hypothetical injury about a hypothetical sign.” App.454a (Oldham, J.). Because that

question was dispositive in Roake, Louisiana has a

vested interest in the outcome of that question. By the

Fifth Circuit’s lights, Louisiana has the best odds of

prevailing on an Article III basis. And if Louisiana did

not prevail on its Article III arguments, it would be in

35

the same position as Texas in defending its Ten Commandments law on the merits—and only Louisiana

has illustratives that drive a dagger through the plaintiffs’ facial challenges.

Third, Louisiana is conditionally appealing to secure relief that it requested, but did not receive, from

the Fifth Circuit. It asked the en banc Fifth Circuit to

“reverse and render judgment” for Louisiana.

CA5.ECF.271 at 71; see CA5.ECF.369-1 at 11 (“The

Court should reverse and render judgment for Defendants.”). But the Fifth Circuit did not do so. Instead, it

elected only to “VACATE the preliminary injunction.”

App.4a, 11a; contra App.17a (Ho, J., concurring in the

judgment) (reasoning that Roake “should be easy to

dismiss” on the merits); App.384 (Nathan en banc decision “RENDER[ING] judgment dismissing Plaintiffs’ Establishment and Free Exercise claims”).

Where a prevailing party receives “only half a

loaf”—i.e., half of the relief it requested—this Court

has held that the party “can appeal the [otherwise-favorable] order insofar as it denies her the relief she

has sought.” See Forney, 524 U.S. at 271 (preserving

an appeal right where a party received only a remand

rather than a reversal). So it is here: Louisiana sought

not just vacatur of the preliminary injunction below

but judgment in its favor ending the Roake lawsuit—

the precise judgment Texas received. Accordingly, this

conditional appeal preserves Louisiana’s right under

Forney to obtain that relief.

To be sure, this is a unique situation in many respects. In light of the Fifth Circuit’s exhaustive and

correct resolution of these cases, Louisiana cannot

36

overstate its opposition to any request for this Court’s

review. At the same time, however, Louisiana must

preserve its rights in the event that this Court wishes

to grant a request for review. In that situation, the factors above—the consolidated proceedings in the Fifth

Circuit, the stated differences between the Texas and

Louisiana laws (and records), and the scope-of-relief

issue—would counsel in favor of considering Roake

and Nathan in tandem.

CONCLUSION

The Court should grant this petition only if it is inclined to grant a petition for writ of certiorari arising

from Nathan.

Respectfully submitted,

ERIC C. RASSBACH

JOSEPH C. DAVIS

BENJAMIN A. FLESHMAN

AMANDA L. SALZ

THE BECKET FUND FOR

RELIGIOUS LIBERTY

1919 PENNSYLVANIA AVE.

NW, SUITE 400

WASHINGTON, D.C. 20006

ELIZABETH B. MURRILL

Attorney General

J. BENJAMIN AGUIÑAGA

Solicitor General

Counsel of Record

ZACHARY FAIRCLOTH

Principal Deputy

Solicitor General

CAITLIN A. HUETTEMANN

Assistant Solicitor General

LOUISIANA DEPARTMENT OF

JUSTICE

1885 N. Third St.

Baton Rouge, LA 70802

(225) 506-3746

AguinagaB@ag.louisiana.gov

APPENDIX

i

TABLE OF APPENDICES

Page

A P P E N DI X A — O P I N ION O F T H E

UNITED STATES COURT OF APPEALS

FOR T H E FI F T H CIRCU I T, FILED

FEBRUARY 20, 2026 . . . . . . . . . . . . . . . . . . . . . . . . . 1a

A P P E N DI X B — O P I N ION O F T H E

UNITED STATES COURT OF APPEALS

FOR T H E FI F T H CIRCU I T, FILED

JUNE 20, 2025 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61a

APPENDIX C — RULING AND ORDER OF

T H E U N I T E D S T A T E S DI S T R IC T

COURT FOR THE MIDDLE

DI S T R IC T OF L OU I SI A NA , F I L ED

NOVEMBER 12, 2024 . . . . . . . . . . . . . . . . . . . . . . 126a

A P P E N DI X D — O P I N ION OF T H E

UNITED STATES COURT OF APPEALS

FOR T H E FI F T H CIRCU I T, FILED

APRIL 21, 2026 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 377a

APPENDIX E — LSA-R.S. 17:2124 . . . . . . . . . . . . . 528a

1a

Appendix

A

APPENDIX A — OPINION

OF THE

UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT,

FILED FEBRUARY 20, 2026

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 24-30706

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.;

2a

Appendix A

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

BEHALF 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,

v.

CADE BRUMLEY, IN HIS OFFICIAL CAPACITY

AS THE LOUISIANA STATE SUPERINTENDENT

OF EDUCATION; CONRAD APPEL, IN HIS

OFFICIAL CAPACITY AS A MEMBER OF THE

3a

Appendix A

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 LATTENCLARK, 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.

Filed February 20, 2026

Appeal from the United States District Court

for the Middle District of Louisiana

USDC No. 3:24-CV-517

4a

Appendix A

Before Elrod, Chief Judge, Jones , S mith , S tewart,

Dennis, Richman, Southwick, Haynes, Graves, Higginson,

Willett, Ho, Duncan, Engelhardt, Oldham, Wilson,

Douglas, and Ramirez, Circuit Judges.

Per Curiam:

Courts do not decide constitutional questions in the

abstract. Nor is constitutional adjudication an exercise

in imagination. Our role is more modest—and more

demanding: to resolve concrete disputes grounded in real

facts and an actual record.

Louisiana House Bill 71 (H.B. 71) requires public

schools to display the Ten Commandments in each

classroom. See La. Stat. Ann. § 17:2124(B)(1). The question

before us, however, is not whether H.B. 71 is constitutional,

but whether that issue is fit for judicial resolution at this

time.

A g roup of pa rents sued to enjoin H.B. 71’s

implementation, arguing that the statute is facially

unconstitutional under both the Establishment and Free

Exercise Clauses of the First Amendment. The district

court granted a preliminary injunction, concluding that

the parents’ claims were ripe and meritorious. A panel

affirmed, and we voted to rehear the case en banc. Because

the parents’ challenge turns on unresolved factual and

contextual questions, equitable relief was premature, and

we VACATE the preliminary injunction.

5a

Appendix A

Article III limits federal courts to resolving “Cases”

and “Controversies.” U.S. Const. art. III, § 2. Because of

that limitation, the issues we decide “must be ‘ripe’—not

dependent on ‘contingent future events that may not occur

as anticipated, or indeed may not occur at all.’” Trump v.

New York, 592 U.S. 125, 131, 141 S.Ct. 530, 208 L.Ed.2d

365 (2020) (per curiam) (quoting Texas v. United States,

523 U.S. 296, 300, 118 S.Ct. 1257, 140 L.Ed.2d 406 (1998)).

This case illustrates why that limitation matters.

There can be no doubt that the Ten Commandments bear

immense religious significance. “For believing Jews and

Christians,” they are “the word of God handed down to

Moses on Mount Sinai.” Am. Legion v. Am. Humanist

Ass’n, 588 U.S. 29, 53, 139 S.Ct. 2067, 204 L.Ed.2d 452

(2019). But they also “have historical significance as one

of the foundations of our legal system.” Id. That dual

character forecloses any categorical rule against their

display on public property. See Van Orden v. Perry,

545 U.S. 677, 125 S.Ct. 2854, 162 L.Ed.2d 607 (2005)

(upholding a Ten Commandments monument on the Texas

State Capitol grounds). Instead, constitutionality turns on

“the context of the display” and “how the text is used.”

Id. at 701, 125 S.Ct. 2854 (Breyer, J., concurring in the

judgment) (emphasis in original).1

While H.B. 71 sets certain “minimum requirement[s]”

regarding the text, size, and accompanying “context

statement” of the displays, it leaves “[t]he nature of the

1. As we have previously recognized, “Justice Breyer’s

concurrence is the controlling opinion in Van Orden.” Staley v.

Harris Cnty., 485 F.3d 305, 308 n.1 (5th Cir. 2007) (en banc).

6a

Appendix A

display” entirely to the discretion of local school boards. La.

Rev. Stat. § 17:2124(B)(1)-(3). That delegation—and those

minimum requirements—necessarily leave numerous

essential questions unanswered. We do not know, for

example, how prominently the displays will appear, what

other materials might accompany them, or how—if at

all—teachers will reference them during instruction.

More fundamentally, we do not even know the full content

of the displays themselves. Although the statute requires

inclusion of the Commandments and a context statement,

it expressly permits additional content—such as “the

Mayflower Compact, the Declaration of Independence,

and the Northwest Ordinance”—to appear alongside

them. Id. § 2124(B)(4).

Simply put, we cannot evaluate “how the text is used,”

Van Orden, 545 U.S. at 701, 125 S.Ct. 2854 (Breyer, J.,

concurring in the judgment) (emphasis omitted), because

we do not yet know—and cannot yet know—how the text

will be used. And “[i]n the absence of this evidence, we

are not able to conduct the fact-intensive and contextspecific analysis required by” the Supreme Court’s Ten

Commandments cases. Staley v. Harris Cnty., 485 F.3d

305, 309 (5th Cir. 2007) (en banc). 2 That same evidentiary

2. As an adjunct to their main Establishment Clause

a rg ument , the pa rents contend that H.B. 71 imposes a

denominational preference by prescribing a version of the

Commandments they characterize as uniquely Protestant.

The plaintiffs do not allege, however, that H.B. 71 imposes any

formal disadvantage on adherents of a particular faith. “Properly

phrased,” their claim is instead that H.B. 71 “works a de facto

discrimination among religions.” Gillette v. United States, 401 U.S.

7a

Appendix A

gap forecloses the parents’ Free Exercise claims, because

“the question whether a law ‘substantially interfer[es]

with the religious development’ of a child will always be

fact-intensive,” requiring courts to “consider the specific

context in which the instruction or materials at issue are

presented.” Mahmoud v. Taylor, 606 U.S. 522, 550, 145

S.Ct. 2332, 222 L.Ed.2d 695 (2025) (alteration in original)

(quoting Wisconsin v. Yoder, 406 U.S. 205, 218, 92 S.Ct.

1526, 32 L.Ed.2d 15 (1972)). Moreover, “the plaintiffs

suffer no concrete harm from the challenged policy itself,

which does not require them ‘to do anything or to refrain

from doing anything.’” Trump, 592 U.S. at 134, 141 S.Ct.

530 (quoting Ohio Forestry Ass’n, Inc. v. Sierra Club,

523 U.S. 726, 733, 118 S.Ct. 1665, 140 L.Ed.2d 921 (1998)).

The panel concluded that “[t]his case is not like

Staley where ‘no decision ha[d] been made regarding any

aspect of the future display of the [stored] monument,”

reasoning that here certain aspects of the future displays

are known. Roake v. Brumley, 141 F.4th 614, 630 (5th

Cir. 2024) (emphasis and alterations in original) (quoting

Staley, 485 F.3d at 309). But “the language of an opinion

is not always to be parsed as though we were dealing

with [the] language of a statute.” Brown v. Davenport,

596 U.S. 118, 141, 142 S.Ct. 1510, 212 L.Ed.2d 463 (2022)

(alteration in original) (quoting Reiter v. Sonotone Corp.,

442 U.S. 330, 341, 99 S.Ct. 2326, 60 L.Ed.2d 931 (1979)).

The panel’s unduly cramped reading of Staley—limiting

437, 451-52, 91 S.Ct. 828, 28 L.Ed.2d 168 (1971). In the context

of a religious display, such a claim necessarily turns on how the

allegedly discriminatory text is presented and employed—facts

not yet developed here.

8a

Appendix A

it to cases in which literally no aspect of a future display

is known—does precisely that. Properly understood,

Staley does not turn on whether some details of a future

display are known, but on whether courts can evaluate

constitutionality without resorting to conjecture. There,

the challenged monument was known in considerable

detail. See Staley v. Harris Cnty., 461 F.3d 504, 506 (5th

Cir. 2006) (describing the monument), dismissed as moot

on reh’g en banc, 485 F.3d 305 (5th Cir. 2007). If those

facts were insufficient to present a ripe controversy, it is

difficult to understand how today’s record does so. 3

The parents (and the principal dissent) seek to

sidestep this difficulty by framing the case as an attack

on H.B. 71’s minimum requirements alone. But an

unripe challenge does not become ripe merely because

a party asserts that the challenged action would be

unlawful on any conceivable set of facts. The Supreme

Court has squarely rejected that approach. In Texas v.

3. Shortly before argument, Louisiana notified us that the

Vernon Parish School Board—one of the defendants—adopted

a resolution stating that, if the district court’s injunction is

lifted, it “intends to direct all schools within its jurisdiction to

immediately implement H.B. 71 in accordance with” guidance

issued by the state Attorney General. That guidance includes

model displays and other implementation suggestions. Although

the resolution provides additional detail regarding how H.B. 71

may be implemented within the Vernon Parish School District,

neither party contends that it alters the ripeness analysis. While

ripeness is jurisdictional, see Shields v. Norton, 289 F.3d 832,

835 (5th Cir. 2002), we are not required to consider “arguments

in favor of jurisdiction” that the parties have not raised, E.T. v.

Paxton, 41 F.4th 709, 717 (5th Cir. 2022). We decline to do so here.

9a

Appendix A

United States, the challengers—no differently than the

challengers here—asked the Court “to hold that under no

circumstances” would the challenged action be lawful. 523

U.S. at 301, 118 S.Ct. 1257. The Court made swift work

of that argument, explaining that the Justices lacked

“sufficient confidence in [their] powers of imagination to

affirm such a negative.” Id. It reiterated that, even when

a plaintiff insists that a law can never be constitutionally

applied, “‘[d]etermination of the scope . . . of legislation in

advance . . . involves too remote and abstract an inquiry for

the proper exercise of the judicial function.’” Id. (brackets

and first ellipsis in original) (quoting Int’l Longshoremen’s

& Warehousemen’s Union, Loc. 37 v. Boyd, 347 U.S. 222,

224, 74 S.Ct. 447, 98 L.Ed. 650 (1954)). That admonition

applies with particular force here, where constitutionality

turns on context that does not yet exist.

Asking us to declare—here and now, and in the

abstract—that every possible H.B. 71 display would

violate the Establishment Clause would require precisely

what Texas forbids: the substitution of speculation for

adjudication. It would oblige us to hypothesize an openended range of possible classroom displays and then assess

each under a context-sensitive standard that depends on

facts not yet developed and, indeed, not yet knowable. That

exercise exceeds the judicial function. It is not judging; it

is guessing. And because it rests on conjecture rather than

a concrete factual record, it does not cure the ripeness

defect—it compounds it. Facial challenges, no less than

as-applied challenges, may “degenerate into conjecture

rather than rulings on concrete controversies.” La Union

del Pueblo Entero v. Abbott, 167 F.4th 743, 754 (5th Cir.

Feb. 12, 2026).

10a

Appendix A

That does not mean, of course, that every facial

challenge (whether under the Establishment Clause or

otherwise) requires specific facts about implementation.

On the contrary, we have long acknowledged that “[a]

nticipatory constitutional challenges . . . ‘play a most vital

role’” in modern constitutional litigation. Red Bluff DriveIn, Inc. v. Vance, 648 F.2d 1020, 1033 n.18 (5th Cir. 1981)

(quoting Int’l Soc’y for Krishna Consciousness of Atlanta

v. Eaves, 601 F.2d 809, 817 (5th Cir. 1979)). But that role

is not unlimited. Ripeness does not demand unqualified

certainty—but it does demand facts sufficient to permit

judicial judgment rather than speculation. Because there

is no “unqualified right to pre-enforcement review of

constitutional claims in federal court,” Whole Woman’s

Health v. Jackson, 595 U.S. 30, 49, 142 S.Ct. 522, 211

L.Ed.2d 316 (2021), we must “insist that an anticipatory

challenge to a statute’s constitutionality grow out of

a ‘real, substantial controversy between parties . . . a

dispute definite and concrete.’” Int’l Soc’y for Krishna

Consciousness, 601 F.2d at 817 (ellipsis in original)

(quoting Babbitt v. United Farm Workers Nat’l Union,

442 U.S. 289, 298, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979)).

Anticipatory review therefore turns not on the scope of a

plaintiff’s legal theory, but on the existence of a dispute

concrete enough to be judged rather than imagined.

Many statutes provide far greater detail than H.B.

71, and many constitutional provisions require far less

contextual inquiry than the Establishment Clause. If H.B.

71 were such a statute, or if the Establishment Clause

demanded less contextual sensitivity, this case might well

be ripe. But H.B. 71 confers sweeping discretion on local

11a

Appendix A

school boards, and the Establishment Clause demands

close attention to context. That incongruity is dispositive:

it forecloses judicial review at this stage and renders the

plaintiffs’ claims nonjusticiable. We add, however, that

nothing in today’s narrow holding prevents future asapplied challenges once the statute is implemented and a

concrete factual record exists.

***

“As this case comes to us . . . it does not—at this

time—present a dispute ‘appropriately resolved through

the judicial process.’” Trump, 592 U.S. at 131, 141 S.Ct.

530 (quoting Susan B. Anthony List v. Driehaus, 573 U.S.

149, 157, 134 S.Ct. 2334, 189 L.Ed.2d 246 (2014)). Article

III judicial power stops there. Accordingly, we VACATE

the preliminary injunction.

12a

Appendix A

James C. Ho, Circuit Judge, concurring in the judgment:

A new Louisiana law requires the display of the Ten

Commandments in public schools. The law is constitutional

and consistent with our Founding traditions. I would

vacate the preliminary injunction for that reason.

The court today vacates the preliminary injunction

on ripeness grounds instead. But the important thing is

that the decision vacates the preliminary injunction—

and allows us to uphold the Louisiana law against

constitutional attack in the future. So I’m content to concur

in the judgment.

That said, I would avoid ripeness and vacate on the

merits. Ordinarily, we must decide jurisdiction first. But

in an appeal of a preliminary injunction, there is no order

of operations—we may vacate on the merits, without

ruling on jurisdiction at all. See Munaf v. Geren, 553 U.S.

674, 691, 128 S.Ct. 2207, 171 L.Ed.2d 1 (2008). Indeed,

“[a]djudication of the merits is most appropriate if the

injunction rests on a question of law and it is plain that the

plaintiff cannot prevail.” Id. If “the Government is entitled

to judgment as a matter of law, it is appropriate for us to

terminate the litigation now.” Id. at 692, 128 S.Ct. 2207

(emphasis added).

We last confronted these issues in United States v.

Abbott, 110 F.4th 700 (5th Cir. 2024). The majority vacated

the preliminary injunction on the merits, and remanded

for further proceedings, without deciding jurisdiction. Id.

at 722. I wrote separately to note that I would vacate on

13a

Appendix A

jurisdictional grounds instead—specifically, the political

question doctrine. I believed that was not only correct,

but would “preclude further litigation entirely,” id. at 727

n.2—and thus “terminate the litigation now.” Munaf, 553

U.S. at 692, 128 S.Ct. 2207.

I mention this, not to relitigate Abbott, but to say

that, if it was proper to vacate on the merits in Abbott,

then it’s a fortiori proper to do so here too. No further

facts are needed to vacate the preliminary injunction here

on the merits. Moreover, upholding Louisiana law would

“terminate the litigation” entirely. Id. That’s what I sought

to do in Abbott. And I’d do the same here.

I.

Plaintiffs contend that their constitutional objection

to the Louisiana Ten Commandments law “may properly

begin and end” with Stone v. Graham, 449 U.S. 39, 101

S.Ct. 192, 66 L.Ed.2d 199 (1980).

That’s telling, because Stone turns entirely on Lemon

v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745

(1971)—and everyone agrees that Lemon is no longer good

law after Kennedy v. Bremerton School District, 597 U.S.

507, 534, 142 S.Ct. 2407, 213 L.Ed.2d 755 (2022) (noting

that “this Court long ago abandoned Lemon”).

Stone begins by observing that, under the first

prong of the Lemon test, statutes “must have a secular

legislative purpose.” Stone, 449 U.S. at 40, 101 S.Ct. 192.

It then rests its holding explicitly—and exclusively—on

14a

Appendix A

the first prong of Lemon: “We conclude that Kentucky’s

statute requiring the posting of the Ten Commandments

in public schoolrooms had no secular legislative purpose,

and is therefore unconstitutional.” Id. at 41, 101 S.Ct.

192. In the ensuing paragraphs, Stone focuses entirely

on the secular legislative purpose test. And it ends by

reprising its holding: “We conclude that [the Kentucky

law] violates the first part of the Lemon v. Kurtzman test,

and thus the Establishment Clause of the Constitution.”

Id. at 42-43, 101 S.Ct. 192. Moreover, the Supreme Court

has repeatedly reaffirmed that Stone is premised on the

legislative purpose prong of Lemon. See, e.g., Van Orden

v. Perry, 545 U.S. 677, 690, 125 S.Ct. 2854, 162 L.Ed.2d

607 (2005) (plurality opinion of Rehnquist, C.J.) (Stone

turned on the law’s “plainly religious purpose”); McCreary

County v. American Civil Liberties Union of Ky., 545 U.S.

844, 859, 125 S.Ct. 2722, 162 L.Ed.2d 729 (2005) (“Stone

found a predominantly religious purpose”).

Plaintiffs nevertheless insist that Stone remains good

law, never mind the Court’s “abandon[ment]” of Lemon.

Kennedy, 597 U.S. at 534, 142 S.Ct. 2407. After all, it’s

well established that, “[i]f a precedent of [the Supreme]

Court . . . appears to rest on reasons rejected in some

other line of decisions, [the lower court] should follow the

case which directly controls, leaving to this Court the

prerogative of overruling its own decisions.” Rodriguez

de Quijas v. Shearson/American Exp., Inc., 490 U.S. 477,

484, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989).

But Stone doesn’t rely on “reasons” that the Supreme

Court has later “rejected.” Stone relies on precedent that

the Supreme Court has overturned.

15a

Appendix A

What Plaintiffs may really be suggesting is that Stone

is still binding because the Supreme Court hasn’t yet

explicitly overturned it by name.

But under that rule, Asian children could still be

subject to racial segregation in public schools. After all,

the Supreme Court hasn’t overturned Gong Lum v. Rice,

275 U.S. 78, 48 S.Ct. 91, 72 L.Ed. 172 (1927), by name,

either.

Of course, that isn’t how we apply Supreme Court

precedent. Gong Lum plainly rests on Plessy v. Ferguson,

163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256 (1896)—just as

Stone plainly rests on Lemon. And Plessy is no longer

good law after Brown v. Board of Education, 347 U.S.

483, 74 S.Ct. 686, 98 L.Ed. 873 (1954)—just as Lemon is

no longer good law after Kennedy.

In short, Plessy is gone, so Gong Lum is gone. See,

e.g., Ho v. San Francisco Unified Sch. Dist., 147 F.3d

854, 862-63 (9th Cir. 1998) (noting that Gong Lum was

“repudiated” in Brown). And so too here: Lemon is gone,

so Stone is gone. We’re not bound by Stone any more than

we’re bound by Gong Lum.

II.

Plaintiffs offer a backup argument. They hope to

reanimate Stone by reconceptualizing it as a coercion case.

But nothing in Stone holds—or even suggests—that

a passive display of the Ten Commandments is somehow

16a

Appendix A

coercive. Indeed, the word “coercion” appears nowhere in

Stone. There’s a perfectly reasonable explanation for that

omission, of course: Stone turned on purpose, not coercion.

It focused on legislative motive, not public impact.

Later Supreme Court opinions have further affirmed

that passive religious displays are not coercive. See, e.g.,

Lee v. Weisman, 505 U.S. 577, 618, 112 S.Ct. 2649, 120

L.Ed.2d 467 (1992) (Souter, J., concurring) (observing

that a “prominent display of a nativity scene on public

property . . . coerced no one into accepting or supporting

whatever message it proclaimed”); Van Orden v. Perry,

545 U.S. 677, 694, 125 S.Ct. 2854, 162 L.Ed.2d 607 (2005)

(Thomas, J., concurring) (“The mere presence of [a

Ten Commandments] monument along [the plaintiff’s]

path involves no coercion and thus does not violate the

Establishment Clause.”). So have we. See, e.g., Briggs v.

Mississippi, 331 F.3d 499, 505 (5th Cir. 2003) (“[a] mere

display on public property . . . is in no meaningful sense

. . . coercive”).

Moreover, we couldn’t regard a passive display of the

Ten Commandments as coercive, without overturning

established precedent permitting the daily recitation of

the Pledge of Allegiance in public schools. See, e.g., Croft

v. Perry, 624 F.3d 157 (5th Cir. 2010). After all, if a mere

display is coercive, then surely an audible daily recitation

of the Pledge of Allegiance every morning for one’s entire

public school education is, too.

Notably, counsel for Plaintiffs conceded during

oral argument that the daily recitation of the Pledge of

17a

Appendix A

Allegiance would indeed present “a problem” under their

theory of coercion. Oral Arg. at 53:01. “Both are issues,”

counsel acknowledged. Oral Arg. at 53:30.

Counsel nevertheless intimated that there’s a

difference “of degree” between the daily recitation of the

Pledge of Allegiance and the passive display of the Ten

Commandments. Oral Arg. at 53:48.

But for what it’s worth, I agree: Passive displays

are even less coercive than being forced to listen every

morning to the monotheistic and anti-atheist Pledge of

Allegiance. Stone itself confirms this—“the Bible verses

involved in this case are merely posted on the wall, rather

than read aloud.” 449 U.S. at 42, 101 S.Ct. 192 (emphasis

added). Cf. Lee, 505 U.S. at 639, 112 S.Ct. 2649 (Scalia, J.,

dissenting) (“[S]ince the Pledge of Allegiance . . . include[s]

the phrase ‘under God,’ recital of the Pledge would appear

to raise the same Establishment Clause issue as the

invocation and benediction.”).

So there’s no coercion in this case. And that conclusion

is fatal to all of Plaintiffs’ First Amendment claims.

III.

Once Stone is removed, this case should be easy

to dismiss. Plaintiffs present no historical evidence

that remotely suggests that our Founders would have

regarded a passive display of the Ten Commandments as

an impermissible “establishment of religion.” U.S. Const.

amend I. See, e.g., Kennedy, 597 U.S. at 537 & n.5, 142 S.Ct.

18a

Appendix A

2407 (noting the “hallmarks of religious establishments

the framers sought to prohibit when they adopted the

First Amendment”) (citing, inter alia, Shurtleff v. City of

Boston, 596 U.S. 243, 285-86, 142 S.Ct. 1583, 212 L.Ed.2d

621 (2022) (Gorsuch, J., concurring)). To the contrary, our

Nation’s history proves precisely the opposite.

Our Nation’s Founders didn’t just permit religion in

education—they presumed that there would be religion

in education. Indeed, our Founders firmly believed that

our Constitution wouldn’t work without a religious people.

John Adams famously observed that “[o]ur Constitution

was made only for a moral and religious People. It is

wholly inadequate to the government of any other.” John

Adams, Letter to the Massachusetts Militia (Oct. 11,

1798). John Jay similarly wrote that “Providence has been

pleased to give this one connected country, to one united

people, . . . professing the same religion, attached to the

same principles of government.” The Federalist No. 2,

at 9 (John Jay) (J. Cooke ed. 1961). The Massachusetts

Declaration of Rights, contained in the 1780 Massachusetts

Constitution, proclaimed that “the happiness of a people,

and the good order and preservation of civil government,

essentially depend upon piety, religion and morality.”

M ass. Const. pt. I, art. III.

Given the centrality of religion in our Founders’

conception of good citizenship, it’s not surprising that

religion was a cornerstone of American education from

the beginning. The First Congress understood religious

instruction to be a necessary element of education,

19a

Appendix A

providing in the Northwest Ordinance of 1789 that

“[r]eligion, morality, and knowledge, being necessary to

good government and the happiness of mankind, schools

and the means of education shall forever be encouraged.”

1 Stat. 50, 52 (1789).1 Samuel Adams implored fellow

Americans to educate their children in “the Study, and

Practice of the exalted Virtues of the Christian system,

which will happily tend to subdue the turbulent passions of

Men, and introduce that Golden Age beautifully described

in figurative language; when the Wolf shall dwell with the

Lamb, and the Leopard lie down with the Kid—the Cow,

and the bear shall feed; their young ones shall lie down

together, and the Lyon shall eat straw like the Ox—none

shall then hurt, or destroy; for the Earth shall be full of

the Knowledge of the Lord.” Samuel Adams, Letter to

John Adams (Oct. 4, 1790).

During the Founding era, American children were

typically educated in church-supported schools or by

private tutors. See Expert Report of Steven K. Green at

18, Roake v. Brumley, No. 3:24-cv00517 (M.D. La. Aug.

26, 2024). And one of the most popular textbooks used

in that education was the New England Primer, which

features extensive religious material including poems,

prayers, and lessons, including the Ten Commandments.

See Westminster A ssembly, The New England Primer

1. The Continental Congress adopted the Northwest

Ordinance of 1787, and the First Congress reaffirmed it in the

Northwest Ordinance of 1789. See Fulton v. City of Philadelphia,

593 U.S. 522, 577-78, 141 S.Ct. 1868, 210 L.Ed.2d 137 (2021) (Alito,

J., concurring); Tara Ross and Joseph C. Smith Jr., Under G od

88-89 (2008).

20a

Appendix A

Improved: For the more easy attaining the true reading

of English: To Which is A dded the A ssembly of Divines,

and Mr. Cotton’s Catechism (Bos., Edward Draper 1777).

See also Mark David Hall & Andrea Picciotti-Bayer,

Ten Commandments in the Public Square and Public

Schools, 34 Wm. & M ary Bill Rts. J. 175, 219 (2025).

From 1680 to 1830, more than 6.5 million copies of the

New England Primer were sold. Id. So it’s safe to say

that that textbook was in common use in early American

education. See, e.g., Morgan v. Plano Independent School

Dist., 612 F. Supp. 2d 750, 754 n.3 (E.D. Tex. 2009) (“The

founding fathers would have been familiar with the New

England Primer used by students in colonial society.”).

Other textbooks used in early American education, such

as McGuffey’s Readers and Noah Webster’s American

Spelling Book, likewise featured religious material

including the Ten Commandments. See Hall & PicciottiBayer, 34 Wm. & M ary Bill Rts. J. at 223.

***

We can vacate the preliminary injunction without

addressing jurisdiction, because “it is plain that the

plaintiff cannot prevail” on “the merits.” Munaf, 553 U.S.

at 691, 128 S.Ct. 2207. So we can “terminate the litigation

now.” Id. at 692, 128 S.Ct. 2207. No further facts are

needed to uphold the Louisiana Ten Commandments law

against Plaintiffs’ constitutional attacks.

The Louisiana law violates neither the Establishment

Clause nor the Free Exercise Clause. It is fully consistent

with the Constitution, and what’s more, it reinforces our

21a

Appendix A

Founders’ firm belief that the children of America should

be educated about the religious foundations and traditions

of our country.

We must never forget that, as Americans, “[w]e are a

religious people whose institutions presuppose a Supreme

Being.” Zorach v. Clauson, 343 U.S. 306, 313, 72 S.Ct.

679, 96 L.Ed. 954 (1952). So “[w]hen the state encourages

religious instruction,” it “respects the religious nature of

our people,” “accommodates . . . their spiritual needs,”

and “follows the best of our traditions.” Id. at 313-14, 72

S.Ct. 679.

In sum, the Louisiana Ten Commandments law is not

just constitutional—it affirms our Nation’s highest and

most noble traditions.

22a

Appendix A

Ja mes L. D ennis , Circuit Judge, joined by Graves ,

H igginson, D ougla s , and R a mirez , Circuit Judges,

dissenting:

The Ten Commandments—here, a version from the

King James Bible—are a sacred text, drawn verbatim

from scripture and not a mere moral code or historical

relic. By placing that text on permanent display in

public school classrooms, not in a way that is curricular

or pedagogical, the State elevates words meant for

devotion into objects of reverence, exposing children to

government-endorsed religion in a setting of compulsory

attendance. That is precisely the kind of establishment

the Framers anticipated and sought to prevent.

More than forty-five years ago, the Supreme Court

confirmed this in Stone v. Graham, 449 U.S. 39, 42,

101 S.Ct. 192, 66 L.Ed.2d 199 (1980), holding that

classroom postings of the Ten Commandments, when

unincorporated into the curriculum, serve only “to induce

. . . schoolchildren to read, meditate upon, perhaps to

venerate and obey, the Commandments,” and cannot stand

under the Establishment Clause. The Court has never

retreated from that holding. To the contrary, it reaffirmed

Stone’s core reasoning in McCreary County v. Am. C.L.

Union, 545 U.S. 844, 125 S.Ct. 2722, 162 L.Ed.2d 729

(2005), and Van Orden v. Perry, 545 U.S. 677, 125 S.Ct.

2854, 162 L.Ed.2d 607 (2005).

Today, the Fifth Circuit deploys ripeness as a

calculated stratagem to evade these precedents in the

Louisiana case. That maneuver is as unfortunate as

it is incorrect for the reasons ably explained by Judge

23a

Appendix A

R amirez.1 Because I would affirm the district court’s

judgment in full, I dissent.

***

In Stone v. Graham, the Supreme Court struck down

a Kentucky statute virtually identical to H.B. 71, holding

that it violated the Establishment Clause by requiring the

Ten Commandments to be displayed in classrooms. See 449

U.S. at 42-43, 101 S.Ct. 192. Louisiana contends that we may

disregard Stone because it relied on Lemon v. Kurtzman,

403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), 2 which

Louisiana claims the Supreme Court effectively abandoned

in Kennedy v. Bremerton School District, 597 U.S.

507, 142 S.Ct. 2407, 213 L.Ed.2d 755 (2022). Louisiana

1. Not only does the statute specify the posters’ size,

placement, and minimum content, but nearly every public school in

Louisiana has already received posters designed by the Louisiana

Attorney General. See Patrick Wall, Louisiana Public Schools

Receive Donated Ten Commandments Posters Amid Legal Battle,

NOLA.com (Jan. 17, 2026), https://perma.cc/2ZXW-JPBK; see also

Ho, J., concurrence (contending there is no requirement that we

resolve this appeal on ripeness grounds).

2. 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 61213, 91 S.Ct. 2105. Over time, courts interpreting the second prong

began asking whether a “reasonable observer” would view the

government’s challenged action as an “endorsement” of religion,

giving rise to the so-called “endorsement test.” See, e.g., County

of Allegheny v. Am. C.L. Union, 492 U.S. 573, 593, 109 S.Ct. 3086,

106 L.Ed.2d 472 (1989).

24a

Appendix A

concedes, however, that Kennedy did not mention Stone

or Lemon’s secular purpose requirement, on which Stone

relied in part. Stone controls for two reasons.

I

First, even adopting Louisiana’s gloss on Kennedy,

lower courts are bound to follow directly on-point Supreme

Court precedent, leaving no room to question the ruling

merely because it “appears to rest on reasons rejected

in some other line of decisions.” Rodriguez de Quijas

v. Shearson/Am. Exp., Inc., 490 U.S. 477, 484, 109 S.Ct.

1917, 104 L.Ed.2d 526 (1989); see also Nathan S. Chapman

& Michael W. McConnell, Agreeing to Disagree 92

(Geoffrey R. Stone ed., 2023) (similar). That command

reflects the obligation of vertical fidelity that defines the

role of an inferior court. No special exception exists for

Fifth Circuit judges.

To be sure, Stone is directly on point. H.B. 71 and the

Kentucky statute both:

1. Require the Ten Commandments to be

displayed in every public school classroom;

2. Mandate minimum poster size and placement

requirements;

3. Include “contextual” statements describing

the “historical basis” for each display;

4. Make the Ten Commandments the central

focus;

25a

Appendix A

5. Permit private financing;

6. T a s k t h e s u p e r i n t e n d e n t w i t h

implementation; and

7. Do not integrate the Ten Commandments

into an educational curriculum.

Compare La. R.S. § 17:2124(B), with Stone, 449 U.S. at 39

n.1, 101 S.Ct. 192 (citing Ky. Rev. Stat. § 158.178 (1980)).

Under H.B. 71, other foundational documents may be

displayed, but only the Ten Commandments are mandatory,

prominently displayed, and printed in large, legible text.

La. R.S. § 17:2124(B)(1), (4)(a). A display meeting H.B. 71’s

requirements is materially indistinguishable from those

struck down in Stone.

Stone’s reasoning applies equally here. The Supreme

Court rejected Kentucky’s claimed secular purpose

because the Ten Commandments were not integrated into

the 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, 101 S.Ct.

192 (citing Abington Sch. Dist. v. Schempp, 374 U.S. 203,

225, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963)). Posting the Ten

Commandments on classroom walls served no educational

function. The same is true under H.B. 71. The posters

must be displayed indiscriminately in every classroom,

regardless of subject matter, and without curricular

integration. La. R.S. § 17:2124(B)(1).

26a

Appendix A

Louisiana claims its Leg islature had a valid

secular purpose: to promote understanding of the Ten

Commandments as part of the state’s historical and

educational tradition. Courts are normally deferential to

such legislative purposes, but the purpose must be sincere,

not a sham. See Croft v. Governor of Tex., 624 F.3d 157,

166 (5th Cir. 2010) (first quoting Edwards v. Aguillard,

482 U.S. 578, 587, 107 S.Ct. 2573, 96 L.Ed.2d 510 (1987),

and then quoting Wallace v. Jaffree, 472 U.S. 38, 64, 105

S.Ct. 2479, 86 L.Ed.2d 29 (1985) (Powell, J., concurring)).

Here, the legislative record demonstrates that a religious

objective dominated. Sponsors repeatedly invoked teaching

children “what God commands,” lamented the decline of

Christianity, and openly framed opposition to H.B. 71 as

an “attack on Christianity.” Another co-sponsor touted

the law as a religious counterbalance to secular education.

The statutory text reinforces this pretext. The Ten

Commandments must be displayed prominently and

legibly, while other foundational documents are optional

and may remain hidden. La. R.S. § 17:2124(A)(9). 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, 101 S.Ct.

192. That objective is unconstitutional.

II

Second, and independently, Stone remains controlling

because Lou isia na vastly overst at es Kenn edy ’s

significance. Kennedy repudiated only the endorsement

27a

Appendix A

test—an offshoot of Lemon’s second prong—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. These principles predate

Lemon and remain binding. See Ira C. Lupu & Robert

W. Tuttle, The Ten Commandments in Louisiana Public

Schools: A Study in the Survival of Establishment Norms,

100 Chi.-K ent L. Rev. 601 (2025).

Consider School District of Abington Township v.

Schempp, the Court’s seminal school prayer case decided

nearly a decade before Lemon. There, the Schempp family

challenged a Pennsylvania law requiring students to read

the Bible at the start of each school day. The Court held

that a law must have a secular legislative purpose to

withstand the strictures of the Establishment Clause. 374

U.S. at 222, 83 S.Ct. 1560 (citing Everson v. Bd. of Educ.

of Ewing Twp., 330 U.S. 1, 15, 67 S.Ct. 504, 91 L.Ed. 711

(1947)); McGowan v. Maryland, 366 U.S. 420, 442, 81 S.Ct.

1101, 6 L.Ed.2d 393 (1961). That foundational principle still

binds us. Unless Schempp and its progeny are overruled—

which Louisiana has never sought—the inquiry into the

purpose of a state-sponsored religious display remains

mandatory. Abandoning Stone would mark a first and

perilous step toward unraveling decades of school prayer

jurisprudence, grounded in the special need to protect

young, impressionable public school students from statesponsored indoctrination.

28a

Appendix A

Louisiana’s reliance on Kennedy as overruling Stone

underscores the error. Kennedy turned on whether

Coach Kennedy’s personal post-game prayers were

protected private speech. The Court held that they

were and that the school district could not restrict them.

The Ten Commandments display here, by contrast, is

indisputable state action undertaken for religious reasons.

Yet Louisiana contends that Kennedy swept away Lemon

entirely, along with Stone, replacing the established

framework with a singular focus on history and tradition.

That is wrong, and I refuse to go along with it. True,

Kennedy states that “this Court long ago abandoned

Lemon and its endorsement test offshoot.” 597 U.S. at

510, 142 S.Ct. 2407. But only the endorsement test—the

reasonable-observer inquiry—was addressed. Kennedy

did not revisit the secular-purpose requirement, the

analysis of primary effects, or the concern with excessive

entanglement. These requirements predate Lemon, and

they remain binding. As Professors Lupu and Tuttle

explain, supra at 629, “Lemon’s component parts thus

remain alive, and function in a variety of contexts, even

if citations to Lemon now will disappear.”

***

Bound by Stone v. Graham and its progeny, and

mindful that we are not the Supreme Court, I conclude

that permanently posting the Ten Commandments

in every public school classroom, without curricular

incorporation and with compulsory attendance, violates

the Establishment Clause. Our court avoids confronting

that conclusion only through procedural artifice. I dissent.

29a

Appendix A

Haynes, Circuit Judge, dissenting:

I concur with the conclusion of Judge Ramirez’s dissent

that this case is ripe. Simply stated, the Louisiana statute

clearly requires the posting of the Ten Commandments,

which is what the Plaintiffs are challenging, so there is

nothing to wait on in that arena, as we explained in our

panel opinion filed on June 20, 2025. I also concur with

the last paragraph in Judge Ramirez’s dissent that the

preliminary injunction was proper, and we should affirm

the district court as we explained in our panel opinion. I

respectfully note that we must follow what the Supreme

Court requires; thus, my determination is not based on

what I think of the Ten Commandments but following the

Constitution as the Supreme Court has explained.

30a

Appendix A

Stephen A. Higginson, Circuit Judge, joined by Dennis,

Graves, Douglas, and Ramirez, Circuit Judges, dissenting:

I join Judge Ramirez’s principal dissent, disagreeing

with the court majority that we cannot examine statecompelled scriptural text at this juncture because H.B.

71’s legislative command to all public schools “leave[s]

numerous essential questions unanswered.” I also join

Judge Dennis’s dissent, emphasizing that it is not our

role to overturn Stone v. Graham, 449 U.S. 39, 101 S.Ct.

192, 66 L.Ed.2d 199 (1980), a particularly stark Fifth

Circuit usurpation given Chief Justice Rehnquist ’s twoparagraph reiteration of Stone in Van Orden v. Perry,

545 U.S. 677, 691, 125 S.Ct. 2854, 162 L.Ed.2d 607 (2005)

(plurality opinion), a decision our court today correctly

embraces.1

I write separately to further disagree with the

court majority that the biblical scripture that all

1. Determinatively, in Van Orden, Chief Justice Rehnquist

juxtaposed the history of religious displays on monuments

with displays and practices in school classrooms, from which

schoolchildren cannot withdraw. 545 U.S. at 690-91, 125 S.Ct.

2854; see also id. at 703, 125 S.Ct. 2854 (Breyer, J., concurring

in judgment) (“This case, moreover, is distinguishable from

instances where the Court has found Ten Commandments displays

impermissible. 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.”).

Despite this, our court majority asserts that in-class displays

remain subject to variation; regardless of context and location,

every parent knows a child’s curiosity does not always train in

the teacher’s direction.

31a

Appendix A

Louisiana schoolchildren now must “confront[],” id., is

indeterminately religious—that the state law command

that students stare at the King James Version of the

Decalogue all day, every day, for every year of their

compulsory education “turns on” facts to be determined.

Although the court majority opines that no “categorical

rule” prohibits the display of the Commandments on public

property, over the ebb and flow of First Amendment

interpretation, the Supreme Court has been constant

with one fixed star: prohibiting government orthodoxy

and denominational discrimination. See Cath. Charities

Bureau, Inc. v. Wis. Lab. & Indus. Rev. Comm’n, 605 U.S.

238, 247, 145 S.Ct. 1583, 221 L.Ed.2d 881 (2025); see also

W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642,

63 S.Ct. 1178, 87 L.Ed. 1628 (1943). That prohibition is

paramount against government placement of a preferred

religion in schools and classrooms. See Van Orden, 545

U.S. at 691, 125 S.Ct. 2854 (“We have been particularly

vigilant in monitoring compliance with the Establishment

Clause in elementary and secondary schools.” (cleaned

up)). 2

We know from Louisiana lawmakers the chosen

scriptural text was not happenstance. The legislators

had definitive religious motivation when they selected a

2. Town of Greece v. Galloway, 572 U.S. 565, 577, 134 S.Ct.

1811, 188 L.Ed.2d 835 (2014); see also Rowan County v. Lund,

585 U.S. 1035, 1037-38, 138 S.Ct. 2564, 201 L.Ed.2d 1101 (2018)

(Thomas, J., dissenting from denial of certiorari) (explaining

that Town of Greece’s historical inquiry concerns the “specific

practice” at issue).

32a

Appendix A

Protestant version of the Decalogue to display. 3 As one of

the “country’s most distinguished scholars of the Religion

Clauses,”4 Professor Michael W. McConnell, has stated

about H.B. 71, “the state legislature is singling out a

particular religious text to be displayed in a way that is

not curricular or pedagogical but rather reverential.”5

3. The primary author and sponsor of the law was clear: “It

is so important that our children learn what God says is right

and what He says is wrong.” And another co-author and cosponsor described the law’s opponents as waging an “attack on

Christianity.”

4. Fulton v. City of Philadelphia, 593 U.S. 522, 554, 141 S.Ct.

1868, 210 L.Ed.2d 137 (2021) (Alito, J., concurring in judgment); see

also Kennedy v. Bremerton Sch. Dist., 597 U.S. 507, 537 n.5, 142

S.Ct. 2407, 213 L.Ed.2d 755 (2022) (citing Professor McConnell’s

scholarship in explaining the “hallmarks of religious establishment

the framers sought to prohibit”); Shurtleff v. City of Boston, 596

U.S. 243, 277, 286, 142 S.Ct. 1583, 212 L.Ed.2d 621 (2022) (Gorsuch,

J., concurring in judgment) (same); Hilsenrath v. Sch. Dist. of

Chathams, 136 F.4th 484, 491 (3d Cir. 2025) (same). The other

“distinguished scholar[]” recognized by the Supreme Court in

Fulton for scholarship that has assisted its recent Establishment

Clause jurisprudence, 593 U.S. at 554, 141 S.Ct. 1868, Professor

Douglas Laycock, notably serves as amicus counsel for a group of

religious amici that submitted a brief in support of plaintiffs here,

see En Banc Brief of Amicus Curiae Baptist Joint Committee for

Religious Liberty, et al. at 28 (No. 24-30706).

5. Mark Walsh, Posting Ten Commandments in Schools

Was Struck Down in 1980. Could That Change?, Educ. Wkly.

(Jul. 11, 2024), https://www.edweek.org/policy-politics/postingten-commandments-in-schools-was-struck-down-in-1980-couldthat-change/2024/07.

33a

Appendix A

Indeed, every faith-based organization before us—

on behalf of thousands of members—and every clergy

and devout plaintiff agree that Louisiana must not pick

and post specific scripture that the state commands

will confront children in state classrooms. All religious

voices submitted to us, barring one individual, oppose

Louisiana’s attempt to select, inculcate, and enforce this

version of gospel text in compulsory public education.

History confirms that the Supreme Court has been

especially vigilant against denominational discrimination

inside the schoolhouse gate. See Barnette, 319 U.S. at 637,

63 S.Ct. 1178 (“Free public education, if faithful to the

ideal of secular instruction and political neutrality, will

not be partisan or enemy of any class, creed, party, or

faction.”); see also Lee v. Weisman, 505 U.S. 577, 592, 112

S.Ct. 2649, 120 L.Ed.2d 467 (1992) (“As we have observed

before, there are heightened concerns with protecting

freedom of conscience from subtle coercive pressure in

the elementary and secondary public schools.”).

To us, Jewish plaintiffs and organizations voice that

it violates their faith to make Jewish children stare at a

Protestant “misappropriat[ion]” of their most sacred text.6

As one Jewish parent plaintiff swore to in district court,

“I believe that H.B. 71 (1) misappropriates a Jewish text,

ripping it from its Jewish context, (2) selectively edits that

6. Two centuries ago, classroom use of the King James Bible

was bitterly opposed by Catholics. See Joan DelFattore, The

Fourth R: Conflicts Over Religion in America’s Public Schools

46-49 (2007) (describing Catholic opposition to the King James

Version of the Ten Commandments in Massachusetts schools).

34a

Appendix A

text by altering its meaning and obscuring or erasing its

Jewish significance, and (3) then mandates the display of

the altered text to non-Jews, in violation of core Jewish

tenets that oppose proselytizing.” Another Jewish parent

insists on the unique importance of the first commandment

for Jews. Louisiana’s version omits a “key piece of the Ten

Commandments and of the Jewish story”—that is, the

deliverance of Jews from slavery in Egypt, after which

the God of Israel entered into his contractual relationship,

through the Decalogue, with his chosen people.7

The same violation is inflicted on plaintiffs and amici

who ascribe to other Abrahamic faiths. For example, one

Presbyterian minister and parent plaintiff explains how

Louisiana’s “stamp of approval” for a specific version of

the Ten Commandments “sends the message” to him, his

children, and his community “that people of some religious

denominations or faith systems are superior to others”

7. These competing versions of the Decalogue are temporally

and theologically incompatible—even if the King James Version

is philologically ecumenical—with the Christian eisegesis of the

Hebrew Bible as anticipating the messiahship of Jesus. As Rabbi

Mara Nathan, a plaintiff in this case’s Texas companion, criticizes,

the Protestant text is nowhere “found in Jewish tradition. It is a

Christianized version of the Commandments that omits explicitly

Jewish aspects of scripture. For example, in Judaism, the

sacredness of the Commandments is rooted in the Jewish belief

that, at Mount Sinai, Moses entered into a covenant with God on

behalf of the children of Israel after they were freed from slavery.

The Ten Commandments are a sign of the covenant between God

and Jewish people. The text of the first Commandment required

by [Texas’s equivalent law] erases this foundational Jewish tenet

and historical context.”

35a

Appendix A

and conveys a state-endorsed “religious hierarchy.”

Likewise, a group of Baptist, Evangelical Lutheran,

and United Church of Christ amici notes that there “is

no singular, universally accepted version of the Ten

Commandments.” See En Banc Brief of Amicus Curiae

Baptist Joint Committee for Religious Liberty, et al. at

28 (No. 24-30706).

Needless to say, any child who adheres to a nonAbrahamic faith—such as Hindus and Buddhists—who

may not believe in one divine lawgiver, or one creator god,

or in revealed religion at all, will look all day at a religious

perplexity, contrary to their parents’ teachings and their

own religious beliefs. Contra Mahmoud v. Taylor, 606 U.S.

522, 530, 145 S.Ct. 2332, 222 L.Ed.2d 695 (2025). 8 That

is why a coalition of over thirty religious organizations

describes how the Decalogue is “inconsistent” with

many faith traditions, such as by “openly forbid[ing] the

practice” of polytheistic religions. See En Banc Brief of

Amicus Curiae National Council of Jewish Women, et al.

at 19-21 (No. 24-30706).

As James Madison warned presciently, government

attempts to “employ Religion as an engine of Civil policy”

8. As the Supreme Court made clear in Mahmoud, “A

government burdens the religious exercise of parents when it

requires them to submit their children to instruction that poses a

very real threat of undermining the religious beliefs and practices

that the parents wish to instill. And a government cannot condition

the benefit of free public education on parents’ acceptance of such

instruction.” 606 U.S. at 530, 145 S.Ct. 2332 (internal quotation

marks and citations omitted).

36a

Appendix A

are “an unhallowed perversion of the means of salvation.”9

Yet, today, the court majority permits Louisiana to do

just that. H.B. 71 displaces parents and churches as

belief-givers. Contra Mahmoud, 606 U.S. at 537, 145

S.Ct. 2332 (“The practice of educating one’s children

in one’s religious beliefs, like all religious acts and

practices, receives a generous measure of protection

from our Constitution.”); id. at 559, 145 S.Ct. 2332

(rejecting the “chilling vision of the power of the state

to strip away the critical right of parents to guide the

religious development of their children”). It puts the

Establishment Clause in friction with the Free Exercise

Clause. Contra Kennedy, 597 U.S. at 532-36, 142 S.Ct.

2407 (describing the “complementary” purposes of

the two religion clauses). And, differently corrosive, it

risks pitting religions against each other—an evil the

Framers sought to protect against when they wrote into

the original Constitution the No Religious Test Clause

9. James Madison, Memorial and Remonstrance Against

Religious Assessments (1785), in 5 The Founders’ Constitution

82, 83 (Philip B. Kurland & Ralph Lerner eds., 1987); see also

Michael W. McConnell, No More (Old) Symbol Cases, 2018-2019

Cato Sup. Ct. Rev. 91, 97 (noting that attempts to “interject”

religious symbols “as a type of religious identity politics” offend

“religious believers because they politicize religion”). Albeit with

neither this historical nor scholarly pedigree, I continue to think

that “[f]aith is demeaned and enfeebled when government enforces

it. The reason is as old as the First Amendment and rooted in

common sense: ‘ecclesiastical establishments’ weaken belief in

the ‘innate excellence’ of religion and strengthen the ‘suspicion’

of nonbelievers.” Freedom from Religion Found., Inc. v. Mack,

54 F.4th 320, 324 (5th Cir. 2022) (Higginson, J., dissenting from

denial of rehearing en banc) (citation omitted).

37a

Appendix A

disestablishment imperative. See U.S. Const., art. VI

§ 3.10

10. As Edmund Randolph famously explained at Virginia’s

ratifying convention, the No Religious Test Clause’s fundamental

purpose was to “put[] all sects on the same footing.” 3 The Debates

in the Several State Conventions on the Adoption of the Federal

Constitution as Recommended by the General Convention at

Philadelphia in 1787, at 204 (Jonathan Elliot ed., 2d ed. 1836);

see also Murphy v. Collier, 587 U.S. 901, 901, 139 S.Ct. 1475, 203

L.Ed.2d 633 (2019) (Kavanaugh, J., concurring) (“The government

may not discriminate against religion generally or against

particular religious denominations.”).

38a

Appendix A

Irma Carrillo Ramirez, Circuit Judge, joined by Stewart,

Dennis, Graves, Higginson, and Douglas, Circuit Judges,

dissenting:

H.B. 71 mandates detailed minimum requirements

for “when, where, [and] under what circumstances”

the Ten Commandments shall be displayed in every

Louisiana public-school classroom. Because the statute

does not mandate the display of any other document,

we are not required to “wait and see” the “nature” of a

Ten Commandments display “in a particular classroom

on a particular day” before evaluating Plaintiffs’ First

Amendment claims. And Plaintiffs assert that H.B. 71

is unconstitutional in all applications regardless of what

other materials may surround the Ten Commandments,

so this case presents pure legal issues that require no

additional factual development. Because this case is ripe,

I respectfully dissent.

I

H.B. 71 states, in relevant part:

(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

39a

Appendix A

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 must be displayed with

a “context statement” about the “History of the Ten

Commandments in American Public Education.” Id.

40a

Appendix A

§ 17:2124(B)(3). H.B. 71 also states that schools “may”

display “the Mayflower Compact, the Declaration of

Independence, and the Northwest Ordinance . . . along

with the Ten Commandments.” Id. § 17:2124(B)(4). But

the statute does not mandate the display of any other

documents along with the Ten Commandments.

Plaintiffs assert that H.B. 71 facially violates the First

Amendment’s Establishment Clause and Free Exercise

Clause.

II

Louisiana asserts that Plaintiffs’ claims are not ripe

because they “seek to enjoin displays they have never

seen and whose form and appearance have not yet been

determined.”

“Ripeness doctrine ‘is drawn both from Article III

limitations on judicial power and from prudential reasons

for refusing to exercise jurisdiction.’” Opulent Life

Church v. City of Holly Springs, 697 F.3d 279, 286 (5th

Cir. 2012) (quoting Reno v. Catholic Soc. Servs., Inc., 509

U.S. 43, 58 n.18, 113 S.Ct. 2485, 125 L.Ed.2d 38 (1993)).

It is “peculiarly a question of timing.” Blanchette v.

Conn. Gen. Ins. Corps., 419 U.S. 102, 140, 95 S.Ct. 335, 42

L.Ed.2d 320 (1974). And its “basic rationale is to prevent

the courts, through avoidance of premature adjudication,

from entangling themselves in abstract disagreements.”

Abbott Lab’ys v. Gardner, 387 U.S. 136, 148, 87 S.Ct. 1507,

18 L.Ed.2d 681 (1967).

41a

Appendix A

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

when the case is abstract or hypothetical.” New Orleans

Pub. Serv., Inc. v. Council of City of New Orleans, 833 F.2d

583, 586 (5th Cir. 1987). “The ripeness inquiry hinges on

two factors: (1) the fitness of the issues for judicial decision;

and (2) the hardship to the parties of withholding court

consideration.” Gulfport Energy Corp. v. FERC, 41 F.4th

667, 679 (5th Cir. 2022) (citation modified).

A

Louisiana argues that Plaintiffs have not met the first

element of the ripeness inquiry—that their claims are fit

for judicial decision.

1

“A matter is fit for review when it presents pure legal

questions that require no additional factual development.”

Id. Facial challenges that assert a law is unconstitutional

in all applications present quintessential “pure question[s]

of law.” See United States v. Rafoi, 60 F.4th 982, 996 (5th

Cir. 2023) (“A facial challenge to the constitutionality

of a statute presents a pure question of law. . . .”). “In

the context of a facial challenge, a purely legal claim is

presumptively ripe for judicial review. . . .” Whole Woman’s

Health v. Cole, 790 F.3d 563, 591 (5th Cir. 2015) (quoting

Harris v. Mexican Specialty Foods, Inc., 564 F.3d 1301,

1308 (11th Cir. 2009)), rev’d on other grounds sub nom.,

Whole Woman’s Health v. Hellerstedt, 579 U.S. 582, 136

S.Ct. 2292, 195 L.Ed.2d 665 (2016). These claims generally

“[do] not require a developed factual record.” Id. (quoting

Harris, 564 F.3d at 1308).

42a

Appendix A

Here, Plaintiffs assert that H.B. 71 is facially

u nconst it ut iona l u nder t he F i r st A mend ment ’s

Establishment and Free Exercise Clauses. These are

“pure question[s] of law.” See Rafoi, 60 F.4th at 996.

Louisiana, however, asserts that additional factual

development is required to resolve the legal issues

presented because “the context in and around the posters”

is unknown and variable, given that no H.B. 71 posters

have yet been displayed.

a

In evaluating Establishment Clause claims concerning

Ten Commandments displays, the Supreme Court has

instructed that “focusing on the text of the Commandments

alone cannot conclusively resolve [the] case. Rather, to

determine the message that the text . . . conveys, we must

examine how the text is used. And that inquiry requires

us to consider the context of the display.” Van Orden v.

Perry, 545 U.S. 677, 701, 125 S.Ct. 2854, 162 L.Ed.2d 607

(2005) (Breyer, J., concurring in the judgment).

In Van Orden, the Supreme Court considered an

Establishment Clause challenge to a singular display of

the Ten Commandments on Texas State Capitol grounds.

Id. at 681, 125 S.Ct. 2854 (plurality opinion). The display

was among “17 monuments and 21 historical markers,”

and had been there for several decades before the

plaintiff sued. Id. at 681-82, 125 S.Ct. 2854. The Supreme

Court held the display was constitutional under the

Establishment Clause. Id. at 681, 125 S.Ct. 2854.

43a

Appendix A

In so holding, the Court focused its analysis on the

contextual differences between the display of the Ten

Commandments on public grounds versus the display “on

the grounds of a public school.” See id. at 703, 125 S.Ct.

2854 (Breyer , J., concurring in the judgment); id. at

690-91, 125 S.Ct. 2854 (plurality opinion) (distinguishing

Establishment Clause cases involving religion in schools).

It explained that the “limits to the display of religious

messages or symbols” often arise in the “classroom

context.” Id. at 690, 125 S.Ct. 2854 (emphasis added).

In fact, the Supreme Court has repeatedly emphasized

that the “classroom context,” id., is different from cases

involving a singular and discretionary display on public

grounds. See, e.g., Lee v. Weisman, 505 U.S. 577, 592, 112

S.Ct. 2649, 120 L.Ed.2d 467 (1992) (“As we have observed

before, there are heightened concerns with protecting

freedom of conscience from subtle coercive pressure in the

elementary and secondary public schools.”); Edwards v.

Aguillard, 482 U.S. 578, 583-84, 107 S.Ct. 2573, 96 L.Ed.2d

510 (1987) (“The Court has been particularly vigilant in

monitoring compliance with the Establishment Clause in

elementary and secondary schools. . . . Students in such

institutions are impressionable and their attendance is

involuntary.”); Mahmoud v. Taylor, 606 U.S. 522, 554-55,

145 S.Ct. 2332, 222 L.Ed.2d 695 (2025) (“In other contexts,

we have recognized the potentially coercive nature of

classroom instruction of this kind. . . . Young children,

like those of petitioners, are often impressionable and

implicitly trust their teachers.” (citation modified)).1

1. See also McCreary County v. ACLU, 545 U.S. 844, 908, 125

S.Ct. 2722, 162 L.Ed.2d 729 (2005) (Scalia, J., dissenting) (“If, as

discussed above, the Commandments have a proper place in our

44a

Appendix A

The Court in Van Orden also acknowledged its holding

in Stone v. Graham, 449 U.S. 39, 101 S.Ct. 192, 66 L.Ed.2d

199 (1980) (per curium), that “a Kentucky statute requiring

the posting of the Ten Commandments in every public

schoolroom” was unconstitutional. 545 U.S. at 690, 125

S.Ct. 2854. As Van Orden emphasized, this was because

the religious displays in Stone arose “in the context of

public elementary and secondary schools,” where the

“text confronted students every day.” Id. at 691, 125 S.Ct.

2854 (citation modified). Van Orden described Stone as

an example of the Court’s “vigilan[ce] in monitoring

compliance with the Establishment Clause in elementary

and secondary schools.” Id. (quoting Edwards, 482 U.S. at

583-84, 107 S.Ct. 2573). And it specifically pointed out that

“[t]he placement of the Ten Commandments monument on

[public] grounds is a far more passive use of those texts

civic history, even placing them by themselves can be civically

motivated—especially when they are placed, not in a school (as

they were in the Stone case upon which the Court places such

reliance), but in a courthouse.” (emphasis added)); City of Elkhart

v. Books, 532 U.S. 1058, 1060-61, 121 S.Ct. 2209, 149 L.Ed.2d 1036,

(2001) (Rehnquist, C.J., dissenting) (“We have been particularly

vigilant in monitoring compliance with the Establishment Clause

in [the Stone] context, where the State exerts great authority

and coercive power over students through mandatory attendance

requirements.” (citation modified)); Lee, 505 U.S. at 643, 112 S.Ct.

2649 (Scalia , J., dissenting) (“[O]ur school prayer cases turn in

part on the fact that the classroom is inherently an instructional

setting, and daily prayer there—where parents are not present

to counter the students’ emulation of teachers as role models and

the children’s susceptibility to peer pressure—might be thought

to raise special concerns regarding state interference with the

liberty of parents to direct the religious upbringing of their

children. . . . (citation modified)).

45a

Appendix A

than was the case in Stone.” Id. (emphasis added). As a

result, Van Orden does not just make clear that context is

important to the Establishment Clause inquiry in religious

display cases. It also makes clear that the necessary

context exists in cases involving a challenge to a statute

that mandates permanent religious displays in publicschool classrooms “where, given the impressionability

of the young, government must exercise particular care

in separating church and state.” See id. at 703, 125 S.Ct.

2854 (Breyer, J., concurring in the judgment).

b

Disputes arising under the Free Exercise Clause

are likewise “fact-intensive.” Mahmoud, 606 U.S. at 550,

145 S.Ct. 2332. 2 But the Supreme Court has still warned

that, “when a deprivation of First Amendment rights

is at stake, a plaintiff need not wait for the damage to

occur before filing suit.” Id. at 559-60, 145 S.Ct. 2332. In

Mahmoud, the Supreme Court found a justiciable case

where parents asserted pre-enforcement Free Exercise

Clause challenges to a school board’s policy of not allowing

elementary school students to opt out of instruction

regarding “LGBTQ+-inclusive” storybooks. Id. at 53743, 145 S.Ct. 2332. The school board did not contest that

it would be “introducing the storybooks into classrooms,

that it [was] requiring teachers to use them as part of

2. Louisiana only substantively addresses Plaintiffs’

Establishment Clause claims—largely ignoring their claims under

the Free Exercise Clause. But ripeness is generally addressed

“claim by claim.” Huawei Techs. USA, Inc. v. FCC, 2 F.4th 421,

434 n.27 (5th Cir. 2021).

46a

Appendix A

instruction, and that it ha[d] encouraged teachers to

approach classroom discussions in a certain way.” Id. at

560, 145 S.Ct. 2332. So, the parents had “undoubtedly”

shown a certainly impending injury or a substantial

risk of harm. Id. at 560, 145 S.Ct. 2332 (citing Susan B.

Anthony List v. Driehaus, 573 U.S. 149, 158, 134 S.Ct.

2334, 189 L.Ed.2d 246 (2014)). The record was also not

“too ‘threadbare’ to demonstrate a burden on [parents’]

religious exercise.” Id. at 559, 145 S.Ct. 2332. The Court

did “not need to ‘wait and see’ how a particular book [was]

used in a particular classroom on a particular day before

evaluating the parents’ First Amendment claims.” Id. at

560, 145 S.Ct. 2332. It “need[ed] only [to] decide whether—

if teachers act[ed] according to the clear and undisputed

instructions of the Board—a burden on religious exercise

[would] occur.” Id.3

3. In discussing justiciability, the Supreme Court in

Mahmoud did not make clear whether it was evaluating standing,

ripeness, or both. It cited the well-established standing principle

that “to pursue a pre-enforcement challenge, a plaintiff must

show that ‘the threatened injury is certainly impending, or there

is a substantial risk that the harm will occur.’” Mahmoud, 606

U.S. at 560, 145 S.Ct. 2332 (quoting Susan B. Anthony List, 573

U.S. at 158, 134 S.Ct. 2334). But the Court also emphasized the

necessity of a sufficiently developed “record,” id. at 559-60, 145

S.Ct. 2332, which generally concerns ripeness. See New Orleans

Pub. Serv., Inc., 833 F.2d at 587 (“[A] case is not ripe if further

factual development is required.”). “The justiciability doctrines

of ripeness and standing often intersect because the question of

whether a plaintiff has suffered an adequate harm is integral to

both.” Prestage Farms, Inc. v. Bd. of Sup’rs of Noxubee Cnty., 205

F.3d 265, 268 n.7 (5th Cir. 2000). And Mahmoud’s justiciability

holding is particularly on-point here, as both cases involve preenforcement First Amendment challenges where the asserted

47a

Appendix A

c

Here, H.B. 71 thoroughly outlines the mandatory

religious displays. A state-selected Protestant version of

the Ten Commandments is to be permanently displayed

“in each classroom in each school”; “on a poster or framed

document that is at least eleven inches by fourteen

inches” where the text is the “central focus” and “printed

in a large, easily readable font”; accompanied by a

“context statement” regarding the “History of the Ten

Commandments in American Public Education.” La. R.S.

§ 17:2124(B)(1)-(3). The statute requires the display of no

other materials.

The details provided by H.B. 71 are particularly

germane to the constitutional inquiry in the “classroom

context” in which this case arises, where the “text” will

“confront[] . . . students every day.” See Van Orden, 545

U.S. at 690-91, 125 S.Ct. 2854; see also Mahmoud, 606

U.S. at 554, 145 S.Ct. 2332 (recognizing the uniquely

“coercive nature of classroom instruction”). And they

provide the information necessary to conduct a “factintensive and context-specific” analysis with respect to

Plaintiffs’ Establishment Clause claims, see Staley v.

Harris Cnty., 485 F.3d 305, 309 (5th Cir. 2007) (en banc),

and to “decide whether—if teachers act according to the

clear and undisputed instructions of [H.B. 71]—a burden

on religious exercise will occur.” See Mahmoud, 606 U.S.

at 560, 145 S.Ct. 2332.

harm is rooted in the religious coercion of students in public

schools. See Mahmoud, 606 U.S. at 550, 553-54, 145 S.Ct. 2332.

48a

Appendix A

Because H.B. 71 provides sufficient information about

the mandatory classroom religious displays, and requires

no other materials to be displayed, “no additional factual

development” is required to determine the statute’s facial

invalidity. See Gulfport Energy Corp., 41 F.4th at 679; see

also Mahmoud, 606 U.S. at 559-60, 145 S.Ct. 2332 (finding

that the record was not “too threadbare” to evaluate

parents’ Free Exercise Clause claims regarding the use of

LGBTQ+-inclusive storybooks in elementary schools, and

that the Court did “not need to wait and see how a particular

book is used in a particular classroom on a particular day

before evaluating the parents’ First Amendment claims”

(citation modified)). The dispute here is not “abstract or

hypothetical.” New Orleans Pub. Serv., Inc., 833 F.2d at 586.

“[T]he court would be in no better position to adjudicate the

issues in the future than it is now.” Pearson v. Holder, 624

F.3d 682, 684 (5th Cir. 2010) (quoting Simmonds v. INS,

326 F.3d 351, 359 (2d Cir. 2003)).

2

Louisiana primarily relies on Staley to argue that

Plaintiffs’ claims are not fit for judicial decision. But Staley

does not compel dismissal.

In Staley, the plaintiff challenged the refurbishment

and rededication of a monument featuring a Bible,

which had been displayed on county courthouse grounds

for several decades. 485 F.3d at 307. A panel of this

court concluded that, in “the specific context of the

refurbishment and rededication of the monument, . . . the

display of the Bible violated the Establishment Clause.”

49a

Appendix A

Id. This court granted rehearing en banc. Id. But shortly

before en banc oral argument, the courthouse “closed for

renovations” and was expected to “remain closed for a

few years,” during which time the monument was to be

“removed and placed in storage.” Id.

The en banc court stressed the “importance of

facts and context” in religious display cases, which was

“evident from the respective outcomes” in Van Orden and

McCreary, both of which “address[ed] the constitutionality

of Ten Commandments displays.” Id. at 308. Ultimately,

the court held the case was “moot” because “[o]ut of sight

in some warehouse, the monument no longer raise[d] the

potential Establishment Clause violations that offended

[the plaintiff ].” Id. at 309. As to ripeness, it explained:

[A]ny dispute over a probable redisplay of the

Mosher monument is not ripe because there are

no facts before us to determine whether such

a redisplay might violate the Establishment

Clause. Indeed, no decision has been made

regarding any aspect of the future display of

the monument. In the absence of this evidence,

we are unable to conduct the fact-intensive and

context-specific analysis required by McCreary

and Van Orden. Thus, any claim that the

Establishment Clause may be violated after the

Courthouse and grounds have been renovated,

is not ripe for review.

Id. In other words, the case was not ripe because it was

“not known when, where, or under what circumstance the

monument and Bible [would] be restored. . . .” Id. at 307.

50a

Appendix A

a

First, this case is ripe for all of the reasons Staley

was not. Although the monument in Staley was known in

considerable detail, the court had “no facts” regarding

“when, where, or under what circumstances” its redisplay

would occur. See id. (emphasis added). In fact, the

Staley court was uncertain if the monument would be

redisplayed at all. See id. at 309. In discussing ripeness,

the court characterized the redisplay as only “probable,”

emphasizing that “no decision ha[d] been made regarding

any aspect of the future display. . . .” Id. (emphasis added).

As a result, the dispute was not ripe because it “rest[ed]

upon contingent future events that may not occur as

anticipated, or indeed may not occur at all.” Id. (citation

modified) (quoting United States v. Carmichael, 343 F.3d

756, 761 (5th Cir. 2003)).

Here, H.B. 71 provides the precise details that

were lacking in Staley—minimum requirements for

“when, where, [and] under what circumstances” the Ten

Commandments are to be displayed in all public-school

classrooms:

• What will be displayed? The exact Protestant

version of “the Ten Commandments” set out in the

statute, La . R.S. § 17:2124(B)(1)-(B)(2), which is

quoted above;

• 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

51a

Appendix A

in a large, easily readable font,” along with the

“context statement” also provided by the statute,

id. § 17:2124(B)(1), (B)(3) (emphasis added);

• When will it be displayed? Every day of every

schoolyear, beginning “[n]o later than January 1,

2025,” 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, where it can

be seen by students,4 id.

Display in accordance with these minimum requirements

is not “probable”—it is certain and mandatory under the

statute. See Staley, 485 F.3d at 309.

b

Second, Staley’s emphasis on the “fact-intensive and

context-specific analysis required” in Establishment

Clause cases is derived from Van Orden and McCreary.

Id. at 307-08. Like Staley, both cases concerned the

display of religious materials on public grounds, but they

resulted in different outcomes due to their “specific facts

and context.” Id. at 308-09; compare Van Orden, 545 U.S.

4. To “display” something means “to place or spread

(something) for people to see.” Display, M erria m -Webster

Dictionary, https://perma.cc/5YQK-NVUP. The requirement 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), dictates that the posters be placed within students’ view.

52a

Appendix A

at 692, 125 S.Ct. 2854 (finding no Establishment Clause

violation where the Ten Commandments were displayed

at the Texas State Capitol), with McCreary, 545 U.S. at

881, 125 S.Ct. 2722 (finding an Establishment Clause

violation where the Ten Commandments were displayed

in two Kentucky courthouses). As discussed, Van Orden

reveals that the “context” required by Staley is not as

specific as any conceivable detail that may or may not

surround a religious display. See Van Orden, 545 U.S.

at 703, 125 S.Ct. 2854. Nor does McCreary require such

specificity. See McCreary, 545 U.S. at 874, 125 S.Ct.

2722 (emphasizing only that “purpose needs to be taken

seriously under the Establishment Clause and needs to

be understood in light of context” (emphasis added)).

Instead, the “limits to the display of religious messages

or symbols” are exemplified in cases like Stone, where

there are “particular concerns that arise in the context

of public elementary and secondary schools.” Van Orden,

545 U.S. at 690-91, 125 S.Ct. 2854 (citation modified).

Importantly, Van Orden focused on distinguishing

displays of the Ten Commandments on public grounds and

displays “on the grounds of a public school,” id. at 703, 125

S.Ct. 2854 (Breyer, J., concurring in the judgment)—the

circumstances in Van Orden were “far more passive.” Id.

at 691, 125 S.Ct. 2854 (plurality opinion).

Here, this court knows enough about the context

of the H.B. 71 displays—the permanent display of the

Ten Commandments, using minimum size and font

requirements, with no requirement to display other

materials, in classrooms—to evaluate the statute’s

constitutionality.

53a

Appendix A

c

Third, unlike this case, Staley did not involve a

facial challenge to a statute mandating a religious

display. Rather, Staley and the cases it primarily relied

on—Van Orden and McCreary—all involved singular,

discretionary religious displays. Because H.B. 71 provides

the “aspect[s] of the future display[s],” and because

Plaintiffs assert purely legal facial challenges, this court

has sufficient information to conduct the Establishment

Clause inquiry described in Staley. See 485 F.3d at 309.

And even if Plaintiffs’ Establishment Clause claims were

unripe under Staley (they are not), that case does not

shed light on the ripeness inquiry for claims asserted

under the Free Exercise Clause—which Louisiana fails to

substantively address at all. Those claims are ripe under

Mahmoud.

3

Finally, Louisiana suggests that this case is not

ripe because factual development about the potential

variations among displays is necessary. These arguments

are rooted in two H.B. 71 provisions: one expressly

allowing certain documents to be displayed “along with

the Ten commandments,” La. R.S. § 17:2124(B)(4), and

one allowing “each governing authority” to “determine[]”

the “nature of the display.” Id. § 17:2124(B)(1). Louisiana,

however, ignores both the text of H.B. 71 and the nature

of Plaintiffs’ facial claims.

54a

Appendix A

H.B. 71 does not mandate any display beyond the Ten

Commandments and the context statement: § 17:2124(B)

(4) states that schools “may”— not shall—display

other documents, such as “the Mayflower Compact,

the Declaration of Independence, and the Northwest

Ordinance . . . along with the Ten Commandments.” Id.

§ 17:2124(B)(4). Even if H.B. 71 did not expressly allow

schools to display other documents “along with the Ten

Commandments,” see id., the statute still would not

prohibit the posting of other documents. 5 And although

§ 17:2124(B)(1) allows schools to “determine[]” the

“nature of the display,” the statute leaves little else to

determine. Schools are required to permanently display

as a “central focus” a state-selected version of the Ten

Commandments on a “poster or framed document,” using

minimum size and font requirements, accompanied by a

specific context statement. Id. § 17:2124(B)(1)-(3). Section

17:2124(B)(4) and the portion of § 17:2124(B)(1) allowing

schools to “determine[]” the “nature of the display” are

not meaningful to the ripeness inquiry because H.B. 71 is,

in effect, no different from a statute that does not include

those provisions. It is no different, for example, from a

similar statute passed in Texas. See Tex. Educ. Code

5. Louisiana’s own reading of the statute underscores this

point. As evidenced by the numerous sample H.B. 71 displays

the state cites, which include the Ten Commandments alongside

quotes and pictures of prominent figures like Justice Ruth Bader

Ginsburg, Martin Luther King Jr., and Lin Manuel Miranda

portraying Alexander Hamilton, § 17:2124(B)(4) does not limit

allowable documents to the Mayflower Compact, Declaration of

Independence, and Northwest Ordinance, even though those are

the only ones explicitly outlined in the statute.

55a

Appendix A

§ 1.0041 (requiring the display of the Ten Commandments

in all public-school classrooms without any provision

expressly allowing or prohibiting the display of other

documents).

In fact, the Texas statute—Senate Bill 10 (S.B.

10)—is being challenged in a separate appeal, which

we consolidated with this case for purposes of en banc

oral argument only. Nathan v. Alamo Heights Indep.

Sch. Dist., No. 25-50695 (5th Cir. 2025), Dkt. 90 (Oct. 31,

2025). Texas has maintained that S.B. 10 is substantively

identical to H.B. 71, arguing it permits “innumerable

ways that teachers could integrate Ten Commandments

posters into the classroom, including displaying them

with material from other faiths or with contextualizing

documents such as the Declaration of Independence and

the Northwest Ordinance.” Brief of Appellants at 20,

Nathan v. Alamo Heights Indep. Sch. Dist., No. 25-50695

(5th Cir. Nov. 24, 2025) (emphasis added). In first remarks

during oral argument, it stated: “Like Louisiana’s statute,

Texas’s S.B. 10 violates neither the Establishment Clause

nor the Free Exercise Clause, particularly in the facial

challenge context. Although S.B. 10 does not require

contextualization of the Ten Commandments, neither does

it forbid providing context similar to that which Louisiana

has suggested.”

Louisiana’s argument that the court must know what

other materials may accompany each Ten Commandments

poster to evaluate H.B. 71’s constitutionality also ignores

the nature of Plaintiffs’ facial claims—that H.B. 71’s

minimum requirements render it unconstitutional in all

56a

Appendix A

applications.6 Whether that is true goes to the merits of

Plaintiffs’ claims—which is separate from the ripeness

inquiry. Answering that question requires no further

factual development. As the Supreme Court has made

clear, this court does “not need to ‘wait and see’ how a

particular [poster] is used in a particular classroom on

a particular day before evaluating the parents’ First

6. To be clear, this case is not ripe merely because Plaintiffs

assert facial challenges. It is ripe because H.B. 71, on its face,

provides sufficient details about the mandatory classroom

religious displays such that this court can evaluate the statute’s

constitutionality. This case is not like Texas v. United States,

523 U.S. 296, 118 S.Ct. 1257, 140 L.Ed.2d 406 (1998), which—

although a declaratory action—did not concern a facial challenge

comparable to the one presented here. Rather, in that case, Texas

sought a declaration that a particular provision of a state statute,

which outlined potential sanctions for school boards failing to

satisfy certain accreditation criteria, was not implicated by § 5

of the Voting Rights Act of 1965. Texas, 523 U.S. at 298-99, 118

S.Ct. 1257. In holding that the case was not ripe, the Supreme

Court emphasized the uncertainty surrounding whether the

sanctions contemplated by the state statute would be ordered in

the first place. Id. at 300, 118 S.Ct. 1257. And even if the Court

had “greater certainty,” it stated that the case would not be fit for

judicial decision because Texas sought a holding that “under no

circumstances [could] the imposition of these sanctions constitute a

change affecting voting”—which the Court did not have “sufficient

confidence” to determine. Id. at 301, 118 S.Ct. 1257. Here, on the

other hand, the display of the Ten Commandments in accordance

with H.B. 71 is not just “currently foreseen or even likely”—it

is inevitable and mandatory. See id. at 300, 118 S.Ct. 1257. This

certainty, along with the detailed minimum requirements provided

by H.B. 71, gives this court enough information to resolve the

question of H.B. 71’s facial invalidity using settled Establishment

and Free Exercise Clause principles.

57a

Appendix A

Amendment claims.” See Mahmoud, 606 U.S. at 560, 145

S.Ct. 2332.7 We “need only decide whether—if teachers act

according to the clear and undisputed instructions of [H.B.

71]—a burden on religious exercise” or an Establishment

Clause violation “will occur.” See id.

***

The minimum requirements of H.B. 71 specify the

contents of the Ten Commandments displays as well as

“when, where, [and] under what circumstances” they

will be presented. See Staley, 485 F.3d at 307. Because

Plaintiffs’ facial claims present “pure question[s] of law,”

see Rafoi, 60 F.4th at 996, that require “no additional

factual development,” see Gulfport Energy Corp., 41 F.4th

at 679, this case is fit for judicial decision.

7. Louisiana points to its numerous hypothetical H.B. 71

displays that incorporate the Ten Commandments among other

documents. Setting aside the assumption that these sample

displays are H.B. 71-compliant and constitutional, which is not

readily apparent, Mahmoud rejects the premise of the state’s

argument. As discussed, this court need not wait and see how the

Ten Commandments posters are used in a particular classroom

on a particular day to evaluate Plaintiffs’ facial challenge. See

Mahmoud, 606 U.S. at 560, 145 S.Ct. 2332. Instead, where, as

here, the court can ascertain what the posters must look like

under H.B. 71, it need not and should not consult hypothetical

displays to address the legal issues presented. See Wash. State

Grange v. Wash. State Republican Party, 552 U.S. 442, 449-50,

128 S.Ct. 1184, 170 L.Ed.2d 151 (2008) (“In determining whether

a law is facially invalid, we must be careful not to go beyond the

statute’s facial requirements and speculate about ‘hypothetical’

or ‘imaginary’ cases.”).

58a

Appendix A

B

Louisiana does not contest the second element of

the ripeness inquiry, i.e., whether the parties will suffer

hardship should this court withhold consideration. This

factor does not warrant short shrift.

Plaintiffs demonstrate hardship where they “show[]

the real possibility of irremediable adverse consequences

were [the court] to deny review.” Roark & Hardee LP v.

City of Austin, 522 F.3d 533, 545 (5th Cir. 2008). “The

loss of First Amendment freedoms, for even minimal

periods of time, unquestionably constitutes irreparable

injury.” Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673,

49 L.Ed.2d 547 (1976). That is why the Supreme Court has

made clear that “when a deprivation of First Amendment

rights is at stake, a plaintiff need not wait for the damage

to occur before filing suit.” Mahmoud, 606 U.S. at 559-60,

145 S.Ct. 2332.

Here, Plaintiffs assert that H.B. 71 violates their

rights under the Establishment and Free Exercise

Clauses. They allege that, despite “not subscrib[ing] to the

state’s official version of the Ten Commandments,” they

“will be pressured into religious observance, veneration,

and adoption of this religious scripture” and “will feel

pressure to avoid fully expressing or practicing their own

faiths and religious beliefs or non-religious beliefs. . . .”

The parent-Plaintiffs also assert that H.B. 71 will usurp

their role in directing their children’s religious education,

values, and upbringing. See Espinoza v. Montana Dep’t of

Revenue, 591 U.S. 464, 486, 140 S.Ct. 2246, 207 L.Ed.2d

59a

Appendix A

679 (2020) (“[W]e have long recognized the rights of

parents to direct ‘the religious upbringing’ of their

children.” (quoting Wisconsin v. Yoder, 406 U.S. 205, 21314, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972))).

This is not a case in which “the plaintiffs [will] suffer

no concrete harm from the challenged policy itself,

which does not require them to do anything or to refrain

from doing anything.” Trump v. New York, 592 U.S.

125, 134, 141 S.Ct. 530, 208 L.Ed.2d 365 (2020) (citation

modified). In this public-school context, “denying prompt

judicial review would impose a substantial hardship on

[Plaintiffs], forcing them to choose between” sending

students to public school and facing a burden on their

First Amendment rights, incurring the cost of sending

their children to private schools, 8 or avoiding school and

“risking costly [fines] and criminal prosecution” under

Louisiana’s compulsory attendance laws. See Susan B.

Anthony, 573 U.S. at 167-68, 134 S.Ct. 2334; see also La.

R.S. §§ 17:154.1(A)(1), 17:221(A)(1)-(2).

III

Because Plaintiffs’ claims are ripe, for the reasons

already explained by the panel, I would hold that Plaintiffs

8. The “availability” of private or home schooling “is no answer

to the parents’ First Amendment objections.” See Mahmoud, 606

U.S. at 561, 145 S.Ct. 2332. “Public education is a public benefit,

and the government cannot ‘condition’ its ‘availability’ on parents’

willingness to accept a burden on their [First Amendment rights].”

See id. (quoting Trinity Lutheran Church of Columbia, Inc. v.

Comer, 582 U.S. 449, 462, 137 S.Ct. 2012, 198 L.Ed.2d 551 (2017)).

60a

Appendix A

have standing to assert their Establishment Clause

claims, that they have plausibly alleged those claims, that

they are likely to succeed on the merits of those claims,

and that the remaining preliminary injunction factors are

satisfied. See Roake v. Brumley, 141 F.4th 614 (5th Cir.

2025), reh’g en banc granted, opinion vacated, 154 F.4th

329 (5th Cir. 2025). I respectfully dissent.

61a

Appendix

B

APPENDIX B — OPINION

OF THE

UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT,

FILED JUNE 20, 2025

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 24-30706

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.;

62a

Appendix B

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

BEHALF 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,

v.

CADE BRUMLEY, IN HIS OFFICIAL CAPACITY

AS THE LOUISIANA STATE SUPERINTENDENT

OF EDUCATION; CONRAD APPEL, IN HIS

OFFICIAL CAPACITY AS A MEMBER OF THE

63a

Appendix B

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 LATTENCLARK, 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.

Filed June 20, 2025

Appeal from the United States District Court

for the Middle District of Louisiana

USDC No. 3:24-CV-517

64a

Appendix B

Before Dennis, Haynes, and Ramirez, Circuit Judges.

Irma Carrillo Ramirez, Circuit Judge:

Parents and students challenge a statute requiring

publ ic schools t o per ma nent ly d i splay t he 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.

65a

Appendix B

(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 Commandments1 must be displayed with

a “context statement” about the “History of the Ten

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.

66a

Appendix B

Commandments in American Public Education,” 2 and

“may” be displayed with “the Mayf lower Compact,

the Declaration of Independence, and the Northwest

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).

67a

Appendix B

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 (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 selfgovernment. . . .

(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, 125 S.Ct. 2854, 162 L.Ed.2d 607 (2005).

68a

Appendix B

...

(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, 125 S.Ct.

2854, 162 L.Ed.2d 607 (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 nonreligious Louisiana parents3 brought suit on their own

behalf (Parents) and on behalf of their minor children

(Students) (collectively

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Petition for Writ of Certiorari — Cade Brumley, Superintendent, Louisiana State Education, et al., Petitioners v. Darcy Roake, Reverend, Individually and on Behalf of Their Minor Children, Real Parties in Interest A. V. and S. V., et al. | Frix