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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