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.

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

APPENDIX VOLUME 2 OF 2

(Pages 243a–534a)

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

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

243a

Appendix C

With that background, the Court returns to AG

Defendants’ argument that “Stone is dead and inapposite.”

(Doc. 39-1 at 47.) As to the former, AG Defendants do not

seriously argue that Stone has been overruled; rather,

they maintain in briefing that the Supreme Court has

rejected Lemon, which was “the doctrinal foundation for

Stone,” and that, consequently, “this Court should treat

Stone as bad law altogether.” (Id. at 47-48, 101 S.Ct. 192.)

AG Defendants are only half right. Specifically, they

are correct that the foundation of Stone—the Lemon

test—has been abandoned. See Kennedy, 597 U.S. at 53435, 142 S.Ct. 2407;9 Groff v. DeJoy, 600 U.S. 447, 460, 143

9. In Kennedy, Justice Gorsuch, writing for the majority,

explained the Court’s evolution on the Lemon test and why the

Supreme Court “abandoned” it:

[ T ] he “ s hor t c o m i n g s ” a s s o c i a t e d w it h t h i s

“ambitiou[s],” abstract, and ahistorical approach to the

Establishment Clause became so “apparent” that this

Court long ago abandoned Lemon and its endorsement

test offshoot. [Am. Legion v. Am. Humanist Ass’n,

588 U.S. 29, 139 S. Ct. 2067, 2079-81, 204 L.Ed.2d 452

(2019)] (plurality opinion); see also Town of Greece v.

Galloway, 572 U.S. 565, 575-577 [134 S.Ct. 1811, 188

L.Ed.2d 835] (2014). The Court has explained that

these tests “invited chaos” in lower courts, led to

“differing results” in materially identical cases, and

created a “minefield” for legislators. [Cap. Square Rev.

& Advisory Bd. v. Pinette, 515 U.S. 753, 768-69, 768

n.3, 115 S.Ct. 2440, 132 L.Ed.2d 650 (1995)] (plurality

opinion) (emphasis deleted). This Court has since

made plain, too, that the Establishment Clause does

not include anything like a “modified heckler’s veto, in

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Appendix C

S.Ct. 2279, 216 L.Ed.2d 1041 (2023) (describing Lemon

as “now abrogated” by Kennedy). The Court will discuss

what replaced Lemon infra, but for present purposes, it

is essential that Kennedy did not overrule Stone, or even

mention it.

Why is that important? Because “[i]t is [the Supreme]

Court’s prerogative alone to overrule one of its precedents.”

Bosse v. Oklahoma, 580 U.S. 1, 3, 137 S.Ct. 1, 196 L.Ed.2d

1 (2016) (per curiam) (quoting United States v. Hatter, 532

which . . . religious activity can be proscribed” based

on “‘perceptions’” or “‘discomfort.’” Good News Club

v. Milford Central School, 533 U.S. 98, 119 [121 S.Ct.

2093, 150 L.Ed.2d 151] (2001) (emphasis deleted). An

Establishment Clause violation does not automatically

follow whenever a public school or other government

entity “fail[s] to censor” private religious speech.

Board of Ed. of Westside Community Schools (Dist.

66) v. Mergens, 496 U.S. 226, 250 [110 S.Ct. 2356,

110 L.Ed.2d 191] (1990) (plurality opinion). Nor does

the Clause “compel the government to purge from

the public sphere” anything an objective observer

could reasonably infer endorses or “partakes of the

religious.” [Van Orden, 545 U.S. at 699, 125 S.Ct. 2854]

(BREYER, J., concurring in judgment). In fact, just

this Term the Court unanimously rejected a city’s

attempt to censor religious speech based on Lemon

and the endorsement test. See Shurtleff, 596 U. S. at

247-50, 142 S. Ct. at 1587-1588; id., at 262-63, 142 S. Ct.

at 1595 (ALITO, J., concurring in judgment); id., at

247-49, 249-52, 142 S. Ct. at 1587, 1588-1589 (opinion

of GORSUCH, J.).

Kennedy, 597 U.S. at 534-35, 142 S.Ct. 2407.

245a

Appendix C

U.S. 557, 567, 121 S.Ct. 1782, 149 L.Ed.2d 820 (2001)). The

High Court’s “decisions remain binding precedent until

[it] see[s] fit to reconsider them, regardless of whether

subsequent cases have raised doubts about their continuing

vitality.” Id. (quoting Hohn v. United States, 524 U.S. 236,

252-53, 118 S.Ct. 1969, 141 L.Ed.2d 242 (1998)). “If a

precedent of [the Supreme] Court has direct application

in a case, yet appears to rest on reasons rejected in some

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

case which directly controls, leaving to th[e] [Supreme]

Court the prerogative of overruling its own decisions.”

Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490

U.S. 477, 484, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989). “This

is true even if the lower court thinks the precedent is in

tension with some other line of decisions.” Consumers’

Rsch. v. Consumer Prod. Safety Comm’n, 91 F.4th 342,

356 (5th Cir. 2024) (quoting Mallory v. Norfolk S. Ry. Co.,

600 U.S. 122, 136, 143 S.Ct. 2028, 216 L.Ed.2d 815 (2023)).

Thus, even if the “doctrinal foundation of Stone” has

been undermined, as AG Defendants argue, it remains

binding precedent. See Jusino, 54 F.4th at 102 (finding

that “[NLRB v. Catholic Bishop of Chi., 440 U.S. 490, 496,

99 S.Ct. 1313, 59 L.Ed.2d 533 (1979)] . . . remain[ed] good

law notwithstanding its reliance . . . on Lemon [], which

was overruled by the Supreme Court” because Kennedy

“did not . . . overrule—or even mention—Catholic Bishop”

and so, “unless and until the Supreme Court sees fit to

overrule Catholic Bishop directly, it remain[ed] binding on

this Court.” (citation omitted)). In short, this Court must

follow Stone if it “directly controls.” Rodriguez, 490 U.S.

at 484, 109 S.Ct. 1917.

246a

Appendix C

Stone does directly control this case, as its facts and

reasoning are on all fours. Again, H.B. 71 provides:

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.

The Act also requires that the Decalogue be “displayed

with a context statement” which begins, “[t]he Ten

Commandments were a prominent part of American

public education for almost three centuries.” Examples

purportedly include, among other things, The New

England Primer from around 1688, McGuffey Readers

written in the early 1800s, and textbooks published by

Noah Webster. H.B. 71 further states that a public-school

governing authority is not required to spend its funds to

purchase a display; rather, “[a] governing authority may

spend donated funds to purchase the Ten Commandments

or other historical documents provided for in [the Act] or

may accept donated displays.” Id.

Thus, the unconstitutional law in Stone and H.B. 71

share the following similarities: (1) both require that the

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Ten Commandments be displayed on the wall in every

public elementary and secondary school classroom in the

state; (2) the two laws impose comparable minimum size

requirements for the display; (3) each statute contains a

context statement purporting to describe the historical

basis for the display; (4) the two statutes allow for financing

by private contributions; (5) neither represents “a case in

which the Ten Commandments are integrated into the

school curriculum, where the Bible may constitutionally be

used in an appropriate study of history, civilization, ethics,

comparative religion, or the like,” Stone, 449 U.S. at 42, 101

S.Ct. 192 (citing Schempp, 374 U.S. at 225, 83 S.Ct. 1560);

see also generally La. Student Standards: Social Studies

(updated May 11, 2023), https://www.louisianabelieves.

com/docs/;10 and (6) the Louisiana and Kentucky laws both

single out the Decalogue for central display (in the case

of the Louisiana statute, central focus) while declining

to give similar preferential treatment to foundational

documents like the U.S. Constitution, the Declaration

of Independence, or the Magna Carta. 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[,]” and that “is not a permissible state

objective under the Establishment Clause.” Stone, 449

U.S. at 42, 101 S.Ct. 192.

10. “[I]t is clearly proper in deciding a 12(b)(6) motion to take

judicial notice of matters of public record.” Norris v. Hearst Tr.,

500 F.3d 454, 461 n.9 (5th Cir. 2007) (citing Cinel v. Connick, 15

F.3d 1338, 1343 n.6 (5th Cir. 1994) (“In deciding a 12(b)(6) motion

to dismiss, a court may permissibly refer to matters of public

record.” (citation omitted))).

248a

Appendix C

AG Defendants attempt to distinguish Stone on

a number of grounds by relying on McCreary and

Van Orden. (Doc. 39-1 at 48-49.) But this position is

undermined by a closer reading of the two cases and their

relationship to Stone.

In McCreary, the Court found that various attempts

to display the Ten Commandments on the walls of a

courthouse violated the Establishment Clause. 545 U.S.

at 858, 125 S.Ct. 2722. The McCreary Court said of Stone:

Stone recognized that the Commandments

are an “instrument of religion” and that, at

least on the facts before it, the display of their

text could presumptively be understood as

meant to advance religion: although state law

specifically required their posting in public

school classrooms, their isolated exhibition

did not leave room even for an argument that

secular education explained their being there.

449 U.S. at 41, n.3 [, 101 S.Ct. 192] (internal

quotation marks omitted). But Stone did not

purport to decide the constitutionality of

every possible way the Commandments might

be set out by the government, and under the

Establishment Clause detail is key. [County

of Allegheny, 492 U.S. at 595, 109 S.Ct. 3086

(opinion of Blackmun, J.)] (“[T]he question

is what viewers may fairly understand to be

the purpose of the display. That inquiry, of

necessity, turns upon the context in which the

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Appendix C

contested object appears” (internal quotation

marks and citation omitted)).

Id. at 867-68, 125 S.Ct. 2722. The High Court traced the

evolution of three displays attempted by the counties and

ultimately concluded that there was “ample support for

the District Court’s finding of a predominantly religious

purpose behind the Counties’ third display” and so upheld

the preliminary injunction.” Id. at 881, 125 S.Ct. 2722.

In doing so, the Supreme Court rejected the counties’

“argu[ment] that purpose in a case like this one should

be inferred, if at all, only from the latest news about the

last in a series of governmental actions,” explaining that

“the history of the government’s actions” was “perfectly

probative evidence.” Id. at 866, 125 S.Ct. 2722 (citing, inter

alia, Edwards, 482 U.S. at 595, 107 S.Ct. 2573 (enquiry

looks to “the historical context of the statute . . . and the

specific sequence of events leading to [its] passage”)).

AG Defendants also point to Van Orden. As explained

above, there the Supreme Court upheld the placement of

a Ten Commandments monument on the Texas Capital

Grounds. Van Orden, 545 U.S. at 691-92, 125 S.Ct. 2854.

The plurality opinion said of Stone:

There are, of course, limits to the display of

religious messages or symbols. For example,

we held unconstitutional a Kentucky statute

requiring the posting of the Ten Commandments

in every public schoolroom. [Stone, 449 U.S. 39,

101 S.Ct. 192, 66 L.Ed.2d 199]. In the classroom

context, we found that the Kentucky statute

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had an improper and plainly religious purpose.

Id., at 41 [101 S.Ct. 192]. As evidenced by

Stone’s almost exclusive reliance upon two of

our school prayer cases, id., at 41-42 [101 S.Ct.

192] (citing [Schempp, 374 U.S. 203, 83 S.Ct.

1560, 10 L.Ed.2d 844], and [Engel, 370 U.S.

421, 82 S.Ct. 1261, 8 L.Ed.2d 601]), it stands

as an example of the fact that we have “been

particularly vigilant in monitoring compliance

with the Establishment Clause in elementary

and secondary schools,” [Edwards, 482 U.S.

at 583-584, 107 S.Ct. 2573]. Compare [Lee,

505 U.S. at 596-597, 112 S.Ct. 2649] (holding

unconstitutional a prayer at a secondary school

graduation), with Marsh v. Chambers, [463 U.S.

783, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983)]

(upholding a prayer in the state legislature).

Indeed, Edwards v. Aguillard recognized that

Stone—along with Schempp and Engel—was

a consequence of the “particular concerns that

arise in the context of public elementary and

secondary schools.” 482 U.S. at 584-585 [107

S.Ct. 2573]. Neither Stone itself nor subsequent

opinions have indicated that Stone’s holding

would extend to a legislative chamber, see Marsh

v. Chambers, supra, or to capitol grounds. . . .

Nor does anything suggest that Stone would

extend to displays of the Ten Commandments

that lack a “plainly religious,” “pre-eminent

purpose,” id., at 41 [101 S.Ct. 192]. See Edwards

v. Aguillard, supra, at 593-594 [107 S.Ct. 2573]

(“[Stone] did not mean that no use could ever

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be made of the Ten Commandments, or that

the Ten Commandments played an exclusively

relig ious role in the history of Western

Civilization”). Indeed, we need not decide in this

case the extent to which a primarily religious

purpose would affect our analysis because it is

clear from the record that there is no evidence

of such a purpose in this case.

The placement of the Ten Commandments

monument on the Texas State Capitol grounds

is a far more passive use of those texts than was

the case in Stone, where the text confronted

elementary school students every day. Indeed,

Van Orden, the petitioner here, apparently

walked by the monument for a number of years

before bringing this lawsuit.

Van Orden, 545 U.S. at 690-91 & 691 n.11, 125 S.Ct. 2854

(plurality opinion) (emphasis added). Likewise, Justice

Breyer’s controlling concurrence said:

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. See, e.g., [Lee, 505

U.S. at 592, 112 S.Ct. 2649]; [Stone, 449 U.S.

39, 101 S.Ct. 192, 66 L.Ed.2d 199]. This case

also differs from McCreary County, where the

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short (and stormy) history of the courthouse

Commandments’ displays demonstrates the

substantially religious objectives of those who

mounted them, and the effect of this readily

apparent objective upon those who view them.

See [545 U.S. 844, 125 S. Ct. 2722, 2738-2740,

162 L.Ed.2d 729] (opinion of the Court). That

history there indicates a governmental effort

substantially to promote religion, not simply

an effort primarily to reflect, historically,

the secular impact of a religiously inspired

document. And, in today’s world, in a Nation

of so many different religious and comparable

nonreligious fundamental beliefs, a more

contemporary state effort to focus attention

upon a religious text is certainly likely to prove

divisive in a way that this longstanding, preexisting monument has not.

Van Orden, 545 U.S. at 703, 125 S.Ct. 2854 (Breyer, J.,

concurring).

This Court concludes that Van Orden and McCreary

do not undermine Plaintiffs’ position for two reasons.

First, as Stone found, “[t]he pre-eminent purpose for

posting the Ten Commandments on schoolroom walls is

plainly religious in nature,” 449 U.S. at 41, 101 S.Ct. 192,

and that is certainly the case with H.B. 71. As the Fifth

Circuit explained in Croft:

Courts are normally deferential to a legislative

articulation of a secular purpose. Nevertheless,

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we do review to ensure that the alleged

secular purpose is the actual purpose, in

other words, it must be sincere; a law will

not pass constitutional muster if the secular

purpose articulated by the legislature is

merely a sham, or merely secondary to a

religious one. However, the statute need not

have exclusively secular objectives to meet the

sincerity standard; the touchstone is neutrality,

and it is only when the government acts with

the ostensible and predominant purpose of

advancing religion that it violates the first

prong of the Lemon test. Importantly, the eyes

that look to purpose belong to an objective

observer, and require no judicial psychoanalysis

of a drafter’s heart of hearts. In sum, openly

available data must support a commonsense

conclusion that a religious objective permeated

the government’s action. The purpose test is

rarely . . . determinative.

624 F.3d at 166-67 (cleaned up). Here, Plaintiffs allege:

These requirements are intended to, and

will, ensure that students are more likely

to observe, absorb, accept, and follow the

Ten Commandments. For example, during

the House Education Committee’s debate,

Representative Horton, the primary author and

sponsor of the bill, explained: “It is so important

that our children learn what God says is right

and what He says is wrong, and to allow [the

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Ten Commandments] to be displayed in our

classrooms as a visual aid, I believe, especially

in this day and time is so important.” Horton

later told a reporter that she is only “concerned

with our children looking and seeing what God’s

law is.” Representative Sylvia Taylor, Horton’s

co-author and co-sponsor of H.B. 71, similarly

stated: “I really believe that we are lacking in

direction. A lot of people, their children, are

not attending churches or whatever . . . So

what I’m saying is, we need to do something in

the schools to bring people back to where they

need to be.” And Representative Roger Wilder,

another co-author and co-sponsor of H.B. 71,

expressed his support for the law by claiming

that those who oppose it are waging an “attack

on Christianity” and suggesting that it would

provide a religious counterbalance to students’

secular education: “My wife is a Christian and if

she was a teacher she would be asked to teach

evolution which is in complete contradiction

with the theory of creation that we believe out

of the Bible. . . . I am a parent and am asking

for this [bill].”

(Compl. ¶ 79, Doc. 1.) AG Defendants do not dispute that

these statements were in fact made. Additionally, the

Court takes judicial notice of an article in the local paper

stating that Governor Landry sent a fundraising email to

supporters in response to the filing of this challenge to

H.B. 71 urging them to help him “ADVANCE [] the JudeoChristian values that this nation was built upon.” Patrick

255a

Appendix C

Wall, Jeff Landry vows to defend ‘Judeo-Christian values’

after Ten Commandments lawsuit, T imes -P icayune

(June 25, 2024), https://www.nola.com/news/politics/

jeff-landry-lawsuit-ten-commandments-judeo-christian/

article_0555d6e6-3314-11ef-863e-1b07594ff87c.html.

Granted, the Fifth Circuit has noted, “[o]f course,

if one legislator was motivated by a desire to advance

religion, that is not enough to defeat other legislators’

sincere interest in acknowledging the state’s religious

heritage; that ‘[s]ome legislators may have religious

motives . . . does not invalidate an act with an otherwise

secular legislative purpose.’” Croft, 624 F.3d at 167 n.4

(quoting Croft, 562 F.3d at 742-43 (citing Bd. of Educ.

of Westside Cmty. Schs. v. Mergens, 496 U.S. 226, 249,

110 S.Ct. 2356, 110 L.Ed.2d 191 (1990))). “Even if some

legislators were motivated by a conviction that religious

speech in particular was valuable and worthy of protection,

that alone would not invalidate” a challenged act “because

what is relevant is the legislative purpose of the statute,

not the possibly religious motives of the legislators who

enacted the law.” Croft, 562 F.3d at 743 (quoting Mergens,

496 U.S. at 249, 110 S.Ct. 2356).

But this case is far different than the one in Croft,

where the law at issue merely included the phrase “one

state under God” in the daily state pledge recited by

Texas school children, and where the bill’s sponsor merely

wanted to mirror the federal pledge in the reference to

God but not necessarily include other parts. Croft, 624

F.3d at 161-62. As the Croft court stated:

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Appendix C

Ultimately, the alleged secular purposes in

mirroring the federal pledge and acknowledging

the state’s religious heritage are not so

implausible or inadequate that they ought not

be credited. Nor have the plaintiffs presented

other evidence indicating that the secular

purposes are a “sham” or “secondary” to some

overriding legislative interest in coercing

Texas’s population into religious practice or

reverence.

Id. at 167 (cleaned up). Conversely, here, H.B. 71’s primary

sponsor expressed a much more overtly religious and

coercive purpose, which was echoed by the Governor, and

which is evident on the face of H.B. 71. That is, in light

of the requirements of H.B. 71 itself and the undisputed

statements of its proponents as to its purpose, the Act’s

alleged secular purposes are “so implausible [and]

inadequate that they ought not be credited.” See id.

(cleaned up).

All of this is not intended to show compliance with the

now-defunct Lemon test. Rather, the above legislative

history and statements support the conclusions that (1)

here, any purported secular purpose was not sincere but

rather a sham; (2) that, under Stone, H.B. 71 is “plainly

religious in nature[;]” and (3) that, consequently, Stone is

directly on point and controlling.

Second, as stated above, the two opinions in Van

Orden discussed above both recognized the heightened

First Amendment concerns in a public-school setting,

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Appendix C

given the impressionability of young students and the

fact that they are captive audiences. All of these concerns

remain present with H.B. 71, regardless of whether this is

a facial challenge or an as-applied one. While the Court of

course must look at the context of the displays, see Staley,

485 F.3d at 308-309 (citing Van Orden, 545 U.S. at 700,

125 S.Ct. 2854 (Breyer, J., concurring) and McCreary,

545 U.S. at 874, 125 S.Ct. 2722), the Court has sufficient

context, from both the language of the statute and the

statements of lawmakers, to conclude that H.B. 71’s

minimum requirements for posting a specific version of the

Ten Commandments in every classroom, all year round,

regardless of subject matter of the class or the age of the

student, which will certainly be seen by impressionable

youths required to attend class, runs afoul of Stone.

In closing, the Court notes that, at oral argument,

AG Defendants conceded that Stone remains binding

on this Court, but they attempted to downplay and

distinguish it by asserting that, unlike the displays in

Stone, these posters are relatively small and unobtrusive

and will be incorporated into the curriculum. But, as

the Court pointed out at the hearing, the “minimum

requirements” of the Act include that “[t]he 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.” H.B. 71(B)(1) (emphasis added).

The illustrative example provided by AG Defendants

(which was made a part of the record) fails to satisfy

those requirements, as the Decalogue was not “printed in

a large, easily readable font.” As to the latter argument,

while the Court agrees—and Plaintiffs do not dispute—

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that the Ten Commandments can be incorporated into

a curriculum, for all the reasons given above, the Court

finds that the Act’s “minimum requirements” fail to do so

in a constitutionally permissible manner.

For all these reasons, the Court finds that Stone

remains binding on this Court and is controlling.

Consequently, AG Defs. MTD will be denied with respect

to the Establishment Clause claim.

C.

Kennedy v. Bremerton School District

1.

Parties’ Arguments

a.

AG Defendants’ Original Memorandum

(Doc. 39-1)

Again, AG Defendants maintain that Plaintiffs

must demonstrate that each of these displays reflects

one of Justice Gorsuch’s six “historical hallmarks of

an established religion.” (Doc. 39-1 at 41 (first quoting

Kennedy, 597 U.S. at 537 n.5, 142 S.Ct. 2407 (citing

Shurtleff, 596 U.S. at 286, 142 S.Ct. 1583 (Gorsuch, J.,

concurring)); and then citing Croft, 624 F.3d at 164).) AG

Defendants then go on to explain how a few particular

illustrations they have provided do not violate Justice

Gorsuch’s hallmarks. (Id. at 41-43, 101 S.Ct. 192.)

AG Defendants also argue that, putting aside

Plaintiffs’ failure to satisfy the Kennedy hallmarks for all

possible displays, H.B. 71 is also constitutional because of

“the historical role of the Ten Commandments not only

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in America, but also in American public education.” (Id.

at 45.) AG Defendants support this argument by quoting

Supreme Court cases such as Van Orden and American

Legion v. American Humanist Ass’n, 588 U.S. 29, 139

S.Ct. 2067, 204 L.Ed.2d 452 (2019). (Id.) AG Defendants

then turn to the historical justification provided in the

preamble to the Act, including the Ten Commandments’

use in The New-England Primer and McGuffey Readers.

(Id. at 45-46 (citations omitted).)11 “To be sure, much

of the 19th-century curricula were (lamentably) non11. AG Defendants explain:

One example (of many) of how the Ten Commandments

were used in public education is a story called The

Young Witness, which appeared in McGuffey’s

Readers. William Holmes McGuffey, McGuffey’s

Fourth Eclectic Reader 207-210 (1920 rev. ed.)

(available at https://tinyurl.com/5n64bcsu). That

story described a nine-year-old girl who was called

to testify at a criminal trial. The defendant’s counsel

sought to disqualify her on the ground that she “does

not understand the nature of an oath.” So, the judge

asked her if she knew what the Bible was (she did) and

whether she knew what would happen if she lied after

placing her hand on the Bible and swearing to tell the

truth. She replied that she would be sent to prison and

she would never go to Heaven. “How do you know this,”

the judge asked. She took the Bible from him, turned

to the Commandments, and explained, “Thou shalt

not bear false witness against thy neighbor.” So, the

judge—moved by the sincerity of her belief and the

seriousness with which she took her oath—found her

competent to testify.

(Doc. 39-1 at 46.)

260a

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ecumenical,” but “the 19th-century debates were about

whether more or different religious instruction should

be supported by the state, . . . not whether religious

materials in schools could coexist with the principles of

disestablishment[.]” (Id. at 46-47 (cleaned up).) Ultimately,

AG Defendants say,

[S]chools today act comfortably within historical

norms when they take one aspect of the religious

material long presented in schools—one that

has ‘an undeniable historical meaning,’—and

display it passively and with context: not in

textbooks, but on the wall; not to be read and

tested on, but merely available to be viewed

(with bemusement or admiration) as an aspect

of legal, civic, and educational history.

(Id. at 47 (quoting Van Orden, 545 U.S. at 690, 125 S.Ct.

2854 (plurality opinion)).)

AG Defendants dispute Plaintiffs’ position that any of

the above illustrations are coercive, particularly in light

of the forms of coercion described by Kennedy. (Id. at 43.)

AG Defendants maintain:

Plaintiffs’ children are not required to do

anything, nor does H.B. 71 require displays

to be read, discussed, or even placed in an

especially visible part of the classroom; they are

simply passive displays. This case thus “looks

very different from those in which [the Supreme]

Court has found prayer” and devotional Bible

261a

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reading “involving public school students to

be problematically coercive.” Kennedy, 597

U.S. at 541, 142 S.Ct. 2407; see [Schempp, 374

U.S. at 206-07, 225, 83 S.Ct. 1560] (holding

unconstitutional vocal, school-directed prayer

and Bible reading at the beginning of each day).

(Id.) AG Defendants say children are not forced to

participate in a religious activity here, because “there is

no religious activity occurring and nothing is required

of Plaintiffs’ children.” (Id. at 43-44.) Children may

be offended, but AG Defendants maintain that, under

Kennedy, “offense does not equate to coercion.” (Id. at

44 (quoting Kennedy, 597 U.S. at 539, 142 S.Ct. 2407

(cleaned up)).)

Further, Plaintiffs’ contention that the AG Defendants

are adopting an official position is, to these defendants,

implausible in light of the different illustrations provided

above. (Id.) AG Defendants emphasize the contextualizing

note to be included on all displays as mitigation. (Id.)

AG Defendants again conclude: “At bottom, Plaintiffs’

Establishment Clause claim must be dismissed because

Plaintiffs have not met—and cannot meet—the high

standard for facial claims given the endless possibilities

of H.B. 71 displays that may be implemented.” (Id.)

b.

Plaintiffs’ Opposition (Doc. 47)

According to Plaintiffs, even if Stone did not end

the analysis, H.B. 71 would be unconstitutional under

262a

Appendix C

Kennedy. (Doc. 47 at 39.) Plaintiffs take issue with

AG Defendants’ argument that Justice Gorsuch’s six

hallmarks represent the only possible way that violations

of the Establishment Clause can occur. (Id.)

On the cont ra r y, the Kenn edy Cou r t ’s

Establishment Clause approach was not so

circumscribed, commanding only that “the

Establishment Clause must be interpreted

by reference to historical practices and

understandings.” 597 U.S. at 535, 142 S.Ct.

2407; see also, e.g., [Chambers, 463 U.S. at 792,

103 S.Ct. 3330] (citing an “unambiguous and

unbroken history” of legislative prayer as the

reason for finding against an Establishment

Clause violation); Town of Greece v. Galloway,

572 U. S . 5 6 5, 577, 13 4 S .Ct . 1811, 18 8

L.Ed.2d 835 (2014) (reiterating that it is “not

necessary to define the precise boundary of the

Establishment Clause where history shows that

the specific practice is permitted” (emphases

added)).

(Id. at 39-40.)

Plaintiffs then turn to the history supporting their

position. (Id. at 40.) Plaintiffs say the Founding Fathers

would have taken issue with the State’s efforts to establish

an official government version of the Ten Commandments

in a statute “that imposes religious teachings” on citizens.

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Appendix C

(Id.) Relying on their expert, Dr. Steven K. Green,12

Plaintiffs assert that these Framers believed the First

Amendment was built on the principles that government

should not take a position on religious doctrine and that

it should not coerce or promote religious beliefs, on which

the Founding Fathers took a broad view. (Id. at 40-41

(citing Green Report ¶¶ 13-32, Doc. 47-2).) Jefferson was

concerned not only with “‘fine & imprisonment’” but

also with “government action that could result in ‘some

degree of proscription perhaps in public opinion.’” (Id. at

41 (quoting Letter from Jefferson to S. Miller, Jan. 23,

1808).) Madison agreed. (Id. (citing Green Report ¶ 21,

Doc. 47-2).)

12. Dr. Green’s qualifications are discussed further in the

Court’s ruling on AG Defendants’ Motion to Exclude Putative

Expert Testimony (Doc. 53), which this Court denied, (Doc. 83).

As stated in that ruling, Green earned a B.A. degree in History

and Political Science, Magna Cum Laude, from Texas Christian

University in 1978 where his minor was Religious Studies. (Green

Report, Doc. 47-2 at 32.) He graduated from the University of

Texas Law School in 1981, earning a J.D. degree. (Id.) In 1987,

he received a Master’s degree in American Religious History

from the University of North Carolina, Chapel Hill and a Ph.D. in

Constitutional History from the same university in 1997. (Id.) He

is currently the Fred H. Paulus Professor of Law and Affiliated

Professor of History and Religious Studies at Willamette

University in Salem, Oregon, where he was also the Director of

the Willamette Center for Religion, Law and Democracy from

2007 to 2020. (Id.) He has authored “seven books and more than

fifty scholarly articles and book chapters” in the area of “the

intersection of law, religion, and history.” (Id. at 3; see also id.

at 33-40.)

264a

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Plaintiffs then assert that “[t]he Ten Commandments

do not form the basis of the U.S. legal system or

government.” (Id.) “Consistent with the leading Founders’

general reproach toward government support for, or

interference with, religion, neither the Constitution nor

the Bill of Rights—the core foundational documents for

the American legal system and government—mentions

God, the Bible, or any commandment.” (Id. (citing U.S.

Const. & amends.; Green Report ¶ 29, Doc. 47-2).) The

Federalist Papers make no mention either. (Id. at 41-42

(citing Green Report ¶ 31, Doc. 47-2).) After quoting Green,

Plaintiffs point out, “With the exception of a few generic

quotes from Supreme Court opinions, [AG] Defendants

fail to offer any evidence demonstrating any influence of

the Ten Commandments on the American legal system

and government at the Founding.” (Id. at 41-42.)

Plaintiffs next contend that the historical record shows

no longstanding, widespread tradition of displaying the

Ten Commandments permanently in classrooms in public

elementary and secondary schools. (Id. at 42.) Plaintiffs

rely on Green’s expert report here. (Id.) For example, the

Act cites the New England Primer, but Green explains

that this “was used chiefly, if not exclusively, in religiously

run schools” and “fell into disuse during the early decades

of the nineteenth century, before the rise of public

education.” (Id. at 42.) Likewise, Plaintiffs maintain that

while some versions of the McGuffey Readers contained

lessons with the Ten Commandments in their entirety or

that reference particular commandments, others did not.

(Id. at 42-43.) Even when used, they were not a significant

part of the texts, and the extent of their use compared to

265a

Appendix C

other readings cannot be verified. (Id. at 43.) Regardless,

references were largely eliminated from the Readers

in later versions, and reliance on them tapered in the

early twentieth century as public schools looked at other

available options. (Id.) Ultimately:

This limited history does not support the Act’s

expansive claim in the context statement that

“[t]he Ten Commandments were a prominent

part of American public education for almost

three centuries,” H.B. 71(B)(3), and the use

of privately written textbooks with discrete

passages referring to the commandments

most certainly does not prove a longstanding,

“unambig uous and unbroken” history of

permanently displaying the Ten Commandment

in public-school classrooms. See Pl. Br. at 8-10.

(Id.) Green also notes that there is an absence in the

record of late 1800s surveys by the U.S. Commissioner of

Education about “specific, routine practices of displaying

the Ten Commandments in classrooms” or using them

for instruction. (Id.) “Simply put, there is no ‘evidence of

a longstanding, let alone unbroken, historical acceptance

and practice of widespread, permanent displays of the

Ten Commandments in public schools.’” (Id.) Plaintiffs

also assert that AG Defendants do not identify “a single

piece of historical evidence specifically involving the

Ten Commandments and schools, other than the use of

the New England Primer and McGuffey Readers.” (Id.

at 44.) Rather, they rely primarily on general quotes

about religion in public life pulled from Van Orden and

266a

Appendix C

American Legion plurality opinions, neither of which

deal with public schools. (Id.) And the displays are not

presumptively constitutional, as AG Defendants contend.

(Id.)

Plaintiffs next note that AG Defendants concede the

Act mandates a particular, Protestant version of the Ten

Commandments that does not comport with Catholic or

Jewish faiths. (Id.) Instead, AG Defendants dispute that

the Act takes an official position on religious matters or

a side on a theological question and point to their many

Illustrations as evidence. (Id. at 44-45.) Plaintiffs respond

that they “take issue with the statutory regime in its

entirety” and its mandate that only one specific version

be posted in classrooms, despite the Supreme Court’s

holding that “one religious denomination cannot be

officially preferred over another.” (Id. at 45 (citing Larson

v. Valente, 456 U.S. 228, 244, 102 S.Ct. 1673, 72 L.Ed.2d 33

(1982)).) AG Defendants’ failure to address this argument

(or to advance any compelling interest or narrow tailoring

to satisfy strict scrutiny) amounts to a waiver. (Id.)

Plaintiffs then argue that “[t]he displays mandated

by H.B. 71 are religiously coercive.” (Id. at 45.) Plaintiffs

maintain that AG Defendants’ position rests on a faulty

premise, namely, that the outcome depends on the

content of specific displays. (Id.) “Rather, the Court must

consider whether students will be religiously coerced

under the mandatory provisions of the statutory scheme,

which will subject students, including the minor-child

Plaintiffs, to a state-approved, Protestant version of the

Ten Commandments in every classroom for every day

267a

Appendix C

of their public-school education.” (Id.) AG Defendants

contend that students don’t have to do anything with the

displays, but Plaintiffs respond that “[t]he Supreme Court

has repeatedly recognized that children are particularly

susceptible to religious indoctrination at school,” because

(1) “they are captive audiences to the state’s religious

messages” and (2) they are “vulnerable to the immediate

impressions and judgments of their teachers and

classmates if they” do not conform their conduct. (Id. at

45-46 (citing Lee, 505 U.S. at 593, 112 S.Ct. 2649; Santa Fe

Indep. Sch. Dist. v. Doe, 530 U.S. 290, 120 S.Ct. 2266, 147

L.Ed.2d 295 (2000)).) Plaintiffs further state, “Lee is the

seminal and binding Supreme Court precedent pertaining

to religious coercion of students,” but AG Defendants

do not address or cite it. (Id. at 46.) AG Defendants also

ignore the fact that students are “a quintessentially

captive audience.” (Id. (citing Ingebretsen, 88 F.3d at

279-80).) Thus, it is not implausible for Plaintiffs to plead

that their “minor-child Plaintiffs will feel pressured to

observe, meditate on, venerate, and adopt or obey the

state’s preferred religious doctrine.” (Id.)

Plaintiffs then assert:

Defendants’ “illustrations,” even if they were

not irrelevant to Plaintiffs’ facial challenge,

would merely put a finer point on the matter,

demonstrating that the State is deeply

and bizarrely obsessed with imposing the

commandments on students and will do whatever

it can to shoehorn its preferred version of that

religious doctrine into any number of displays.

268a

Appendix C

Whether schools decide to display one or more

of Defendants’ hypothetical posters, or use

posters featuring other content, the common

denominator, from classroom to classroom and

school to school, will be the State’s mandatory

version of the Ten Commandments. Students

will be acutely aware of the lengths to which the

State has gone in ensuring that they encounter

these displays in every classroom for nearly

every minute of their school day, and students

will reasonably feel religiously coerced by the

State’s desperate insistence that they take heed

of the commandments. The Supreme Court

effectively recognized this in Stone, holding

that the only function served by such permanent

and pervasive displays is “to induce . . .

schoolchildren to read, meditate upon, perhaps

to venerate and obey, the Commandments.” 449

U.S. at 42, 101 S.Ct. 192.

(Id. at 46-47.) Additionally, AG Defendants argue that,

unlike Schempp[,] here “there is no religious activity,”

but the Supreme Court has rejected this:

In Schempp, the Court recognized that daily

scriptural readings constituted “religious

exercise,” 374 U.S. at 224-25, 83 S.Ct. 1560; and

in Stone, the Court held that it is not “significant

that the Bible verses involved in this case are

merely posted on the wall, rather than read

aloud as in Schempp and Engel.” 449 U.S. at

42, 101 S.Ct. 192. School-promoted religious

activity is no less unconstitutional merely

269a

Appendix C

because it is silent. See Wallace v. Jaffree,

472 U.S. 38, 60-61, 105 S.Ct. 2479, 86 L.Ed.2d

29 (1985) (holding that state law improperly

encouraged students to engage in silent prayer);

Pl. Br. at 18.

(Id.) For all these reasons, Plaintiffs contend that the Act

violates the Establishment Clause. (Id. at 47.)

c.

AG Defendants’ Reply (Doc. 54)

AG Defendants respond: “Kennedy instructs courts

to look elsewhere—to the six hallmarks of religious

establishments the framers sought to prohibit.” (Doc. 54

at 19 (cleaned up).) According to AG Defendants, Plaintiffs

cannot escape these hallmarks because the Fifth Circuit

and this Court have decided Establishment Clause cases

“with reference to them.” (Id. at 19-20 (citations omitted).)

“The hallmarks question is not whether a practice is itself

old; it is whether the practice (old or new) fits within one

of the historical ‘hallmarks of an established religion.’”

(Id. at 20 (quoting Kennedy, 597 U.S. at 537 & n.5, 142

S.Ct. 2407).) This requires an examination of what the

“public understanding” of an establishment was “when

the [provision] was adopted.” Id. (quoting N.Y. State Rifle

& Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1, 37, 142 S.Ct.

2111, 213 L.Ed.2d 387 (2022)). Plaintiffs’ expert fails

to address the hallmarks, and, in any event, the Court

should “reason[] by analogy” without the need of experts

but rather perform “a commonplace task for any lawyer

or judge.” (Id. at 20 (citing Bruen, 597 U.S. at 28-29, 142

S.Ct. 2111).)

270a

Appendix C

AG Defendants maintain that they need not show

an “‘unambiguous and unbroken’ history of ‘the specific

practice’ tracing back to the Founding. . . .” (Id. at 20-21

(citation omitted).) Kennedy, they argue, undertook no

such analysis. (Id. at 21.)

According to AG Defendants, even if the Court

adopted Plaintiffs’ method of historical analysis, H.B. 71

is still constitutional. (Id.) AG Defendants refer to a seal

proposed for the United States by Jefferson and Franklin

that depicted “Moses leading the Israelites across the

Red Sea,” (id. (citing Shurtleff, 596 U.S. at 287 n.11, 142

S.Ct. 1583 (Gorsuch, J., concurring in judgment))), and

there is a tradition of religious content in public schools,

including the Ten Commandments, (id. (citing Town of

Greece, 572 U.S. at 577, 134 S.Ct. 1811; H.B. 71(B)(3))). AG

Defendants argue that Plaintiffs’ expert largely agrees

with AG Defendants’ historical assessment about the

New England Primer and McGuffey Readers, despite

the “nitpick[ing].” (Id.) In short, Green may think the

Ten Commandments were not “prominent,” but courts

should not decide the sufficiency of “the historical analysis

contained in documentary exhibits appearing on public

grounds.” (Id. at 21-22 (citation omitted).) Here, they

contend, the Supreme Court has already reaffirmed the

importance of the Ten Commandments on the legal system

of this country. (Id. at 22 (citing Van Orden, 351 F.3d at

181; Am. Legion, 588 U.S. at 53, 139 S.Ct. 2067).)

AG Defendants take issue with Plaintiffs’ reliance on

Lee and its alleged prohibition on coercion in the school

context. (Id.) AG Defendants maintain that Kennedy

271a

Appendix C

states that Lee bars the government from “forcing citizens

to engage in a formal religious exercise” such as reading

the Bible or prayer. (Id. (cleaned up).) AG Defendants

say that the Fifth Circuit has likewise prohibited only

religious exercises or activity. (Id. (citations omitted).) AG

Defendants continue:

Meanwhile, neither the Supreme Court nor

the Fifth Circuit has ever adopted the bizarre

notion that being in the same room with passive

religious symbols amounts to being coerced

to engage in a religious exercise. Rather, the

Justices have repeatedly taken as given the

constitutionality of the Ten Commandments

displays in buildings throughout our Nation’s

capital, see Am. Legion, 588 U.S. at 53 [139 S.Ct.

2067], even though citizens must walk by them

on a daily basis and even sit beneath them in the

Supreme Court’s courtroom. The Fifth Circuit

has upheld a “Latin cross with three crosslets”

on a city seal, though the plaintiff was required

to see it if he wanted to pay utility bills or visit

the municipal building. Murray, 947 F.2d at 150.

And if Plaintiffs were right, any student in any

of the States or municipalities whose “seals and

flags . . . include religious symbols or mottos”

could demand that those flags be taken down

from their classrooms. Freedom From Religion

Found., Inc. v. County of Lehigh, 933 F.3d 275,

284 (3d Cir. 2019); see, e.g., Am. Legion, 588 U.S.

at 55-56 & n.23, 139 S.Ct. 2067 (Maryland’s flag

includes “two crosses”); Briggs v. Mississippi,

272a

Appendix C

331 F.3d 499, 503 (5th Cir. 2003) (upholding

former Mississippi f lag, which featured a

symbol “frequently . . . described as . . . a St.

Andrew’s Cross”). That is not the law.

(Id. at 22-23.)

Larson is also distinguishable, argue AG Defendants,

because that case involved a law imposing “legal

obligations (registration and reporting requirements) on

some religious organizations but not others. . . .” (Id. at

23.) The Supreme Court has also distinguished Larson

and allowed a nativity scene on government property (in

Lynch v. Donnelly, 465 U.S. 668, 687 n.13, 104 S.Ct. 1355,

79 L.Ed.2d 604 (1984)) and a Latin cross on public land (in

Am. Legion, 588 U.S. 29, 139 S.Ct. 2067). AG Defendants

contend that H.B 71 used the King James version of the

Ten Commandments because it was upheld in Van Orden.

(Id.) AG Defendants close by arguing that facial challenges

are hard to win, and, again, Plaintiffs have not shown that

every application of H.B. 71 is unconstitutional. (Id. at 24.)

d.

AG Defs. Daubert Motion (Doc. 53)

In AG Defendants’ Motion to Exclude Putative

Expert Testimony (Doc. 53) (“AG Defs. Daubert Motion”),

AG Defendants argue, inter alia, that Plaintiffs’ expert

does not provide testimony that is relevant to the

Establishment Clause claim. (Doc. 53-1 at 10-12.) While

Plaintiffs’ expert opinions bear more on Pls. MPI than

AG Defs. MTD, where the sufficiency of the Complaint

273a

Appendix C

controls, the parties’ disagreement about the appropriate

standard to apply is relevant to the instant analysis.

In AG Defs. Daubert Motion, these defendants

contend:

Whether Ten Commandments displays existed

in public or private schools in prior centuries,

or whether the Ten Commandments were

taught in public or private schools, is not

determinative of the relationship between

today’s displays and the historical hallmarks

identified by the Supreme Court. Similarly, the

history of a “specific practice” tracing back to

the Founding, or the private “views of Madison

and Jefferson” on the practice, are not “facts

at issue” for purposes of Rule 702. Pls.’ Reply

& MTD Resp. 28-29, ECF 47; Green Rep. 7-10,

18-26. Of course, the longstanding prominent

role of the Ten Commandments in American

classrooms is of great educational relevance—

presumably no one thinks schoolchildren should

be kept intentionally ignorant of those historical

facts—but here what is educationally relevant

is not legally relevant.

(Id. at 11.)

AG Defendants maintain that “Plaintiffs’ overall

approach to their case” relies on “a misunderstanding of

the relevant historical analysis.” (Id.) According to AG

Defendants, the Supreme Court provided the “historical

274a

Appendix C

hallmarks of a religious establishment” in Kennedy, so

that, now, this Court needs only to “determine whether

a challenged modern practice displays any of those

hallmarks, using the ‘reasoning by analogy’ that is ‘a

commonplace task for any lawyer or judge.’” Id. (quoting

Bruen, 597 U.S. at 28-29, 142 S.Ct. 2111). The hallmarks

were intended to give lower courts guidance so that they

did not have to scour the historical record or look to

experts. (Id. at 11-12 (citing Shurtleff, 596 U.S. at 285-86,

142 S.Ct. 1583 (Gorsuch, J., concurring in judgment)).)

AG Defendants close by urging that Plaintiffs do not

dispute much of the history cited in the Act; rather, they

only disagree that the presence of the Ten Commandments

in those documents counts as “‘prominent’ or ‘widespread.’”

(Id. at 12.)

e.

Plaintiffs’ Opposition to AG Defs.

Daubert Motion (Doc. 61)

Pla inti ffs respond f i rst that AG Defendants

mischaracterize the “original meaning and history” test

in Kennedy. (Doc. 61 at 19-22.) Plaintiffs claim that AG

Defendants’ efforts to reduce this standard to Justice

Gorsuch’s six hallmarks in the Shurtleff concurrence is

unsupported by Kennedy or Shurtleff itself. (Id. at 19-20.)

Plaintiffs maintain that, “[w]hile Justice Gorsuch’s

Shurtleff opinion may be useful with respect to assessing

the validity of certain challenged practices under

the Establishment Clause, it does not purport to set

forth the entire universe of permitted or prohibited

275a

Appendix C

practices.” (Id. at 20 (citing Shurtleff, 596 U.S. at 285,

142 S.Ct. 1583 (Gorsuch, J., concurring in judgment)).)

“Rather, the opinion identifies ‘some helpful hallmarks

[of establishment] that localities and lower courts can

rely on.’” (Id. (quoting Shurtleff, at 285, 142 S.Ct. 1583).)

Justice Gorsuch explained that “‘founding-era religious

establishments often bore certain other telling traits’

that ‘explain many of th[e] Court’s Establishment Clause

cases.’” (Id. (quoting Shurtleff, at 286, 142 S.Ct. 1583

(emphasis added)).)

Further, Plaintiffs argue, Kennedy does not require

such a limited reading of the “original meaning and

history” test. (Id.) According to Plaintiffs, Kennedy

reaffirmed the standard in Town of Greece v. Galloway

and stated that “the Establishment Clause must be

interpreted by ‘reference to historical practices and

understandings.’” (Id. (quoting Kennedy, 597 U.S. at 535,

142 S.Ct. 2407 (quoting Town of Greece, 572 U.S. at 576,

134 S.Ct. 1811)).)

Plaintiffs maintain that Town of Greece demonstrates

how this standard operates. (Id. at 20-21.) Plaintiffs

say that the Town of Greece court examined the

“specific practice” in question and asked whether it

“accorded with history and reflected the Founders’

understanding.” (Id. (quoting Town of Greece, 572 U.S.

at 577, 134 S.Ct. 1811).)

The Court held that the challenged legislative

invocations were constitutional because there

was an “‘unambiguous and unbroken history of

276a

Appendix C

more than 200 years . . . of opening legislative

sessions with a prayer[,]’” which dates back to

the First Congress and “‘has become part of

the fabric of our society.’” [Town of Greece, 572

U.S.] at 576 [134 S.Ct. 1811] (quoting [Chambers,

462 U.S. at 792, 103 S.Ct. 2706]). In other words,

the practice “was accepted by the Framers

and has withstood the critical scrutiny of time

and political change.” Id.; . . . As the Court

recognized in Town of Greece, “sweep[ing] away

what has so long been settled would create new

controversy and begin anew the very divisions

along religious lines that the Establishment

Clause seeks to prevent.” 572 U.S. at 577, 134

S.Ct. 1811.

Defendants’ insistence that the Kennedy

Court’s footnoted citation to Justice Gorsuch’s

Shurtleff concurrence somehow transforms

and elevates his “hallmarks” passage—itself

a nonexclusive treatment of some traits of

religious establishment—into a binding, hardand-fast checklist would effectively negate

the Court’s discussion of the “historical

practices and understandings” analysis in

Kennedy and Town of Greece. . . . Even the

Court’s short parenthetical explaining Justice

Gorsuch’s Shurtleff opinion makes clear that his

treatment of this issue is not exhaustive, noting

that he discusses “coercion and certain other

historical hallmarks of an established religion.”

277a

Appendix C

See Kennedy, 597 U.S. at 537 n.5, 142 S.Ct. 2407

(emphasis added).

(Id. at 21-22.)

Plaintiffs conclude by explaining how Green’s

testimony will be relevant; “[i]t will help the Court draw

the line ‘between the permissible and the impermissible’

by elucidating historical facts that illuminate whether the

challenged practice ‘accor[ds] with history and faithfully

reflec[ts] the understanding of the Founding Fathers.’” (Id.

at 22, 142 S.Ct. 2111 (quoting Kennedy, 597 U.S. at 53536, 142 S.Ct. 2407 (internal quotation marks omitted)).)

After describing this, Plaintiffs then point out how AG

“Defendants repeatedly rely on the historical significance

of the Ten Commandments, especially their purported

use in public school[,]” which undermines AG Defendants’

position that the history is not relevant. (Id. at 23-25.)

f.

Reply in Support of AG Defs. Daubert

Motion (Doc. 63)

AG Defendants reply that, because the Green Report

does not address Plaintiffs’ burden under Kennedy or the

six “hallmarks,” it is irrelevant. (Doc. 63 at 9.) Plaintiffs

claim that this Court should follow Town of Greece’s

historical analysis of asking if the “specific practice”

was engaged in at the Founding and continued as an

“unambiguous and unbroken history,” but (1) the Kennedy

court did not undertake that analysis but rather looked to

the hallmarks, and (2) Fifth Circuit caselaw after Kennedy

has specifically rejected the idea that an “unambiguous

278a

Appendix C

and unbroken history” is required. (Id. at 9-10 (cleaned

up).)

AG Defendants also dispute the idea that they have

the burden under the Kennedy test and rely on a Fourth

Circuit case for this point. (Id. at 10-11 (citations omitted).)

Otherwise, they claim, every government action would

be presumptively unconstitutional until the government

identified a specific historical practice to support it. (Id.

at 11.)

Experts are also not required, say AG Defendants;

that is clear from Justice Gorsuch’s hallmarks test and

the fact that the author did not rely on it in his opinions

in Kennedy and Shurtleff. (Id. (citations omitted).) Even

if historical analysis was required, none of the cases

Plaintiffs cite relied on the use of expert testimony.

(Id.) And, by Plaintiffs’ line of reasoning, some of their

arguments would also need a theological or scriptural

scholar rather than a law professor specialized in history.

(Id. at 11-12.)

2.

Law and Analysis

Again, the Court found above that Stone controls

and that the Act violates the holding of that case. On that

ground alone, the Court could deny AG Defs. MTD with

respect to the Establishment Clause claim.

But, even if the Court did examine this claim under

the standards laid out by Kennedy and subsequent

caselaw, AG Defs. MTD would again be denied. The Court

279a

Appendix C

will begin by discussing the appropriate standard to be

applied under Kennedy before applying that standard to

the allegations of Plaintiffs’ Complaint.

a.

The Relevant Standard

Preliminarily, the parties dispute the appropriate

standard to apply. AG Defendants maintain that the

Court must evaluate and decide the issue based on Justice

Gorsuch’s six hallmarks, while Plaintiffs look to other

standards endorsed by the Supreme Court.

Both sides somewhat miss the mark. This Court will

first examine the case law before and after Kennedy and

will then extrapolate some guiding principles.

i.

Pre-Kennedy

Before Kennedy, “[t]he Supreme Court generally

applied at least one of three tests under the Establishment

Clause,” Am. Humanist Ass’n v. McCarty, 851 F.3d 521,

525 (5th Cir. 2017) (citations omitted), though the High

Court “repeatedly emphasized [its] unwillingness to be

confined to any single test or criterion in this sensitive

area[,]” id. at 525 n.9 (quoting Lynch v. Donnelly, 465 U.S.

668, 679, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984)). The first

test, Lemon, was covered above. “Under [the second test,]

the endorsement test, a ‘[g]overnment unconstitutionally

endorses religion whenever it appears to take a position

on questions of religious belief, or makes adherence to a

religion relevant in any way to a person’s standing in the

political community.’” Id. at 525 n.11 (quoting Ingebretsen,

280a

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88 F.3d at 280). “The government creates this appearance

when it conveys a message that religion is favored,

preferred, or promoted over other beliefs.” Id. (quoting

Ingebretsen, 88 F.3d at 280). “Under [the third test,] the

coercion test, unconstitutional coercion occurs where ‘(1)

the government directs (2) a formal religious exercise (3)

in such a way as to oblige the participation of objectors.’”

Id. at 525 n.12 (quoting Doe ex rel. Doe v. Beaumont Indep.

Sch. Dist., 173 F.3d 274, 285 (5th Cir. 1999)).

That standard evolved somewhat in “legislativeprayer cases.” Id. at 526. Specifically, the Fifth Circuit

explained:

[I]n Marsh v. Chambers, 463 U.S. 783, 78485 [103 S.Ct. 3330, 77 L.Ed.2d 1019] (1983),

a member of the Nebraska Legislature sued

state officials, claiming that the practice of

opening each session with a chaplain’s prayer

violated the Establishment Clause. The Court

upheld the practice without applying any of

the conventional tests, observing that “[t]he

opening of sessions of legislative and other

deliberative public bodies with prayer is deeply

embedded in the history and tradition of this

country.” Id. at 786 [103 S.Ct. 3330].

The Court revisited the issue in Town of

Greece v. Galloway, [572 U.S. 565], 134

S. Ct. 1811, 1827-28 [188 L.Ed.2d 835] (2014),

stating unequivocally that the legislativeprayer exception in Chambers extends to

281a

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prayers delivered at town-board meetings.

Those prayers, however, must not “denigrate

nonbelievers or religious minorities, threaten

damnation, or preach conversion.” Id. at 1823.

Moreover, “[t]he principal audience for these

invocations is not . . . the public but lawmakers

themselves, who may find that a moment of

prayer or quiet reflection sets the mind to a

higher purpose and thereby eases the task of

governing.” Id. at 1825.

McCarty, 851 F.3d at 525-26. But the Fifth Circuit also

emphasized that “school-prayer cases” were treated

differently:

As distinguished from legislative-prayer cases,

however, the Supreme Court, in school-prayer

cases such as Santa Fe Independent School

District v. Doe, 530 U.S. 290 [120 S.Ct. 2266, 147

L.Ed.2d 295] (2000), Lee v. Weisman, 505 U.S.

577 [112 S.Ct. 2649, 120 L.Ed.2d 467] (1992),

and County of Allegheny v. ACLU, 492 U.S. 573

[109 S.Ct. 3086, 106 L.Ed.2d 472] (1989), has

applied the conventional Establishment Clause

tests. In Weisman, a graduation-prayer case,

the Court, 505 U.S. at 592 [112 S.Ct. 2649],

explained that “there are heightened concerns

with protecting freedom of conscience from

subtle coercive pressure in the elementary

and secondary public schools” and that “prayer

exercises in public schools carry a particular

risk” of unconstitutional coercion. The Court

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distinguished Weisman from Chambers, noting

that the legislative-prayer exception does not

apply in “the public school context.” Id. at 597

[112 S.Ct. 2649]. In ACLU, the Court opined

that “state-sponsored prayer in public schools”

is “unconstitutional.” [492 U.S. at 590 n.40, 109

S.Ct. 3086 (citing Schempp, 374 U.S. 203, 83

S.Ct. 1560, 10 L.Ed.2d 844)].

Id. at 526. Thus, in McCarty, “[t]he key question” was

whether “whether [the] case [was] essentially more a

legislative-prayer case or a school-prayer matter.” Id.

Then, in 2022, the Supreme Court decided two cases:

Shurtleff and Kennedy. In Shurtleff, the Supreme Court

evaluated a decision by the city of Boston to refuse the

petitioner’s request to fly a Christian flag outside city

hall, even though no request had before been denied.

596 U.S. at 247, 142 S.Ct. 1583. The Supreme Court

found that “Boston’s refusal to let Shurtleff and [his]

Camp Constitution raise their flag based on its religious

viewpoint ‘abridg[ed]’ their ‘freedom of speech.’” Id. at

248, 142 S.Ct. 1583 (quoting U.S. Const. amend. I).

One of the issues raised in that case was the city’s

claim that it could not raise the religious flag because doing

so would violate the Establishment Clause. Id. at 258,

142 S.Ct. 1583. The High Court rejected this argument,

explaining, “[w]hen a government does not speak for

itself, it may not exclude speech based on ‘religious

viewpoint’; doing so ‘constitutes impermissible viewpoint

discrimination.’” Id. (quoting Good News Club v. Milford

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Cent. Sch., 533 U.S. 98, 121 S.Ct. 2093, 150 L.Ed.2d 151

(2001)). Since Boston denied petitioner’s “request solely

because the Christian flag he asked to raise ‘promot[ed]

a specific religion’ . . . that refusal discriminated based on

religious viewpoint and violated the Free Speech Clause.”

Id. at 258-59, 142 S.Ct. 1583.

Justice Gorsuch, joined by Justice Thomas, filed a

concurring opinion attributing Boston’s erroneous view

of the Establishment Clause to Lemon, which, “instead of

bringing clarity to the area, [] produced only chaos.” Id. at

277, 142 S.Ct. 1583 (Gorsuch, J., concurring in judgment).

Justice Gorsuch looked back at recent cases like Town of

Greece and American Legion, both of which “direct[ed]

and redirect[ed] the inquiry to original meaning as

illuminated by history,” before addressing two particular

reasons why lower courts still erroneously applied Lemon.

Id. at 283-87, 142 S.Ct. 1583. Relevant here:

Second, it seems that Lemon may occasionally

shuffle from its grave for another and more prosaic

reason. By demanding a careful examination of

the Constitution’s original meaning, a proper

application of the Establishment Clause no

doubt requires serious work and can pose its

challenges. Lemon’s abstract three-part test

may seem a simpler and tempting alternative to

busy local officials and lower courts. But if this

is part of the problem, it isn’t without at least a

partial remedy. For our constitutional history

contains some helpful hallmarks that localities

and lower courts can rely on.

284a

Appendix C

Beyond a formal declaration that a religious

denomination was in fact the established

church, it seems that founding-era religious

establishments often bore certain other telling

traits. See M. McConnell, Establishment

and Disestablishment at the Founding, Part

I: Establishment of Religion, 44 Wm. &

Mary L. Rev. 2105, 2110-2112, 2131 (2003)

(Establishment and Disestablishment). First,

the government exerted control over the

doctrine and personnel of the established

church. Second, the government mandated

attendance in the established church and

punished people for failing to participate.

Third, the government punished dissenting

churches and individuals for their religious

exercise. Fourth, the government restricted

political participation by dissenters. Fifth,

the government provided financial support

for the established church, often in a way that

preferred the established denomination over

other churches. And sixth, the government

used the established church to carry out certain

civil functions, often by giving the established

church a monopoly over a specific function.

See id., at 2131-2181. Most of these hallmarks

reflect forms of “coerc[ion]” regarding “religion

or its exercise.” [Lee, 505 U.S. 577, 112 S.Ct.

2649, 120 L.Ed.2d 467 []; id., at 640 [112 S.Ct.

2649] (Scalia, J., dissenting); Van Orden, 545

U.S. at 693, 125 S.Ct. 2854 [] (THOMAS, J.,

concurring).

285a

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These traditional hallmarks help explain many

of this Court’s Establishment Clause cases,

too. . . . The thread running through these cases

derives directly from the historical hallmarks

of an establishment of religion—government

control over religion offends the Constitution,

but treating a church on par with secular entities

and other churches does not. See Establishment

and Disestablishment 2205-2208.

Id. at 285-87, 142 S.Ct. 1583. Justice Gorsuch ultimately

concluded, “[t]his Court long ago interred Lemon, and it

is past time for local officials and lower courts to let it lie.”

Id. at 288, 142 S.Ct. 1583.

ii.

Kennedy

Kennedy came a month after Shurtleff and was

authored by Justice Gorsuch. 597 U.S. 507, 142 S.Ct.

2407, 213 L.Ed.2d 755. There, the issue was whether a

high school football coach’s First Amendment rights were

violated when he knelt at midfield after games to pray

quietly. Kennedy, 597 U.S. at 512, 142 S.Ct. 2407. The

Court evaluated the coach’s claim under the Free Exercise

Clause (which this Court will have more to say about

below) before turning to the school district’s argument

that its conduct was justified to prevent an Establishment

Clause violation. Id. at 532, 142 S.Ct. 2407.

In doing so, the Court discussed “the shortcomings” of

the Lemon and endorsement test, described the Supreme

Court’s “unambiguous reject[ion] [of] a city’s attempt to

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Appendix C

censor religious speech” on those bases, id. at 533-35,

142 S.Ct. 2407 (citing Shurtleff, 142 S. Ct. at 1587-88; id.

at 1595 (Alito, J., concurring in judgment); id. at 1587,

1588-89 (opinion of Gorsuch, J.)), and noted “[i]n the last

two decades, th[e] Court ha[d] often criticized or ignored

Lemon and its endorsement test variation,” id. at n.4

(collecting cases). The Supreme Court then explained:

In place of Lemon and the endorsement test, this

Court has instructed that the Establishment

Clause must be interpreted by “‘reference

to historical practices and understandings.’”

Town of Greece, 572 U.S. at 576 [134 S.Ct.

1811]; see also American Legion, [] 139 S. Ct.

at 2087 (plurality opinion). “‘[T]he line’” that

courts and governments “must draw between

the permissible and the impermissible” has to

“‘accor[d] with history and faithfully reflec[t]

the understanding of the Founding Fathers.’”

Town of Greece, 572 U.S. at 577 [134 S.Ct. 1811]

(quoting [Schempp, 374 U.S. at 294, 83 S.Ct.

1560] (Brennan, J., concurring)). An analysis

focused on original meaning and history, this

Court has stressed, has long represented the

rule rather than some “‘exception’” within the

“Court’s Establishment Clause jurisprudence.”

572 U.S. at 575 [134 S.Ct. 1811]; see American

Legion, [] 139 S. Ct. at 2087 (plurality opinion);

Torcaso v. Watkins, 367 U.S. 488, 490, 81 S.Ct.

1680, 6 L.Ed.2d 982 [] (1961) (analyzing certain

historical elements of religious establishments);

McGowan v. Maryland, 366 U.S. 420 [81 S.Ct.

287a

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1101, 6 L.Ed.2d 393] (1961) (analyzing Sunday

closing laws by looking to their “place . . . in

the First Amendment’s history”); Walz v. Tax

Comm’n of City of New York, 397 U.S. 664,

680 [90 S.Ct. 1409, 25 L.Ed.2d 697] (1970)

(analyzing the “history and uninterrupted

practice” of church tax exemptions).

Id. at 535-36, 81 S.Ct. 1101.

The Supreme Court then rejected the district court’s

position that the coach coerced students to pray as being

unsupported by the evidence. Id. at 536-37, 81 S.Ct. 1101.

The Court first acknowledged the role coercion plays in

Establishment Clause cases:

To be sure, this Court has long held that

gover nment may not , consistent w ith a

historically sensitive understanding of the

Establishment Clause, “make a religious

observance compulsory.” Zorach v. Clauson,

343 U.S. 306, 314, 72 S.Ct. 679, 96 L.Ed. 954 []

(1952). Government “may not coerce anyone to

attend church,” ibid., nor may it force citizens

to engage in “a formal religious exercise,”

[Lee, 505 U.S. at 589, 112 S.Ct. 2649]. No

doubt, too, coercion along these lines was

among the foremost hallmarks of religious

establishments the framers sought to prohibit

when they adopted the First Amendment.

[See, e.g., Lee, 505 U.S. at 640-642, 112 S.Ct.

2649] (Scalia, J. dissenting); Shurtleff, 142

288a

Appendix C

S. Ct. at 1608-1610 (opinion of GORSUCH, J.)

(discussing coercion and certain other historical

hallmarks of an established religion); 1 Annals

of Cong. 730-731 (1789) (Madison explaining

that the First Amendment aimed to prevent

one or multiple sects from “establish[ing] a

religion to which they would compel others

to conform”); M. McConnell, Establishment

and Disestablishment at the Founding, Part

I: Establishment of Religion, 44 Wm. & Mary

L. Rev. 2105, 2144-2146 (2003).] Members

of this Court have sometimes disagreed

on what exactly qualifies as impermissible

coercion in light of the original meaning of the

Establishment Clause. Compare Lee, 505 U.S.

at 593 [112 S.Ct. 2649] with id., at 640-641 [112

S.Ct. 2649] (Scalia, J., dissenting).

Id. at 536-37, 537 n.5, 81 S.Ct. 1101.

The Court concluded that “in this case Mr. Kennedy’s

private religious exercise did not come close to crossing

any line one might imagine separating protected private

expression from impermissible government coercion.”

Id. at 537, 81 S.Ct. 1101. In short, Mr. Kennedy did not

seek to direct any prayers to students or require anyone

else to participate.” Id. at 538, 81 S.Ct. 1101. While some

would have seen him pray, the Supreme Court advised,

“learning how to tolerate speech or prayer of all kinds is

‘part of learning how to live in a pluralistic society,’ a trait

of character essential to ‘a tolerant citizenry.’” Id. (quoting

Lee, 505 U.S. at 590, 112 S.Ct. 2649).

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This Court has long recognized as well that

“secondary school students are mature enough

. . . to understand that a school does not endorse,”

let alone coerce them to participate in, “speech

that it merely permits on a nondiscriminatory

basis.” Mergens, 496 U.S. at 250 [110 S.Ct. 2356]

(plurality opinion). Of course, some will take

offense to certain forms of speech or prayer

they are sure to encounter in a society where

those activities enjoy such robust constitutional

protection. But “[o]ffense . . . does not equate to

coercion.” Town of Greece, 572 U.S. at 589 [134

S.Ct. 1811] (plurality opinion).

Id. at 538-39, 81 S.Ct. 1101. Moreover, though the district

argued that kids could be compelled to participate in the

prayers, the Supreme Court rejected this stance: “There

is no indication in the record that anyone expressed any

coercion concerns to the District about the quiet, postgame

prayers that Mr. Kennedy asked to continue and that led

to his suspension. Nor is there any record evidence that

students felt pressured to participate in these prayers.”

Id. at 539, 81 S.Ct. 1101.

The Supreme Court then rejected the “District[’s]

suggest[ion] that any visible religious conduct by a teacher

or coach should be deemed—without more and as a matter

of law—impermissibly coercive on students.” Id. at 540,

81 S.Ct. 1101. The High Court explained:

Such a rule would be a sure sign that our

Establishment Clause jurisprudence had gone

290a

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off the rails. In the name of protecting religious

liberty, the District would have us suppress it.

Rather than respect the First Amendment’s

double protection for religious expression, it

would have us preference secular activity. . . . It

is a rule that would defy this Court’s traditional

understanding that permitting private speech

is not the same thing as coercing others to

participate in it. See Town of Greece, 572 U.S.

at 589 [134 S.Ct. 1811] (plurality opinion). It

is a rule, too, that would undermine a long

constitutional tradition under which learning

how to tolerate diverse expressive activities

has always been “part of learning how to live in

a pluralistic society.” Lee, 505 U.S. at 590 [112

S.Ct. 2649]. We are aware of no historically

sound understanding of the Establishment

Clause that begins to “mak[e] it necessary for

government to be hostile to religion” in this way.

Zorach, 343 U.S. at 314 [72 S.Ct. 679].

Id. at 540-41, 81 S.Ct. 1101. The Supreme Court then

distinguished those cases in which public-school prayers

were found to be coercive.

Meanwhile, this case looks very different

from those in which this Court has found

prayer involving public school students to be

problematically coercive. In Lee, this Court held

that school officials violated the Establishment

Clause by “including [a] clerical membe[r]” who

publicly recited prayers “as part of [an] official

291a

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school graduation ceremony” because the

school had “in every practical sense compelled

attendance and participation in” a “religious

exercise.” 505 U.S. at 580, 598 [112 S.Ct. 2649].

In Santa Fe Independent School Dist. v. Doe,

the Court held that a school district violated

the Establishment Clause by broadcasting

a prayer “over the public address system”

before each football game. 530 U.S. 290, 294

[120 S.Ct. 2266, 147 L.Ed.2d 295] (2000). The

Court observed that, while students generally

were not required to attend games, attendance

was required for “cheerleaders, members of

the band, and, of course, the team members

themselves.” Id., at 311 [120 S.Ct. 2266]. None

of that is true here. The prayers for which Mr.

Kennedy was disciplined were not publicly

broadcast or recited to a captive audience.

Students were not required or expected to

participate. And, in fact, none of Mr. Kennedy’s

students did participate in any of the three

October 2015 prayers that resulted in Mr.

Kennedy’s discipline. . . .

Id. at 541-42, 81 S.Ct. 1101. The Court concluded:

R e s p e c t fo r r e l i g i o u s e x p r e s s i o n s i s

indispensable to life in a free and diverse

Republic—whether those expressions take

place in a sanctuary or on a field, and whether

they manifest through the spoken word or

a bowed head. Here, a government entity

292a

Appendix C

sought to punish an individual for engaging in

a brief, quiet, personal religious observance

doubly protected by the Free Exercise and

Free Speech Clauses of the First Amendment.

And the only meaningful justification the

government offered for its reprisal rested on

a mistaken view that it had a duty to ferret

out and suppress religious observances even

as it allows comparable secular speech. The

Constitution neither mandates nor tolerates

that kind of discrimination. Mr. Kennedy is

entitled to summary judgment on his First

Amendment claims. The judgment of the Court

of Appeals is Reversed.

Id. at 543-44, 81 S.Ct. 1101.

iii. Post-Kennedy

To this Court’s knowledge, the Fifth Circuit has

only interpreted one Establishment Clause claim in light

of Kennedy, and that was in Freedom From Religion

Found., Inc. v. Mack, 49 F.4th 941 (5th Cir. 2022). There,

plaintiffs filed suit against a justice of the peace named

Mack because he “open[ed] his court with a ceremony that

include[d] a prayer.” Id. at 944.

The Fifth Circuit began its analysis by “identify[ing]

the legal standard.” Id. at 950. Plaintiffs maintained that

Mack had to show “that legislative prayer was supported

by ‘unambiguous and unbroken history of more than

200 years.’” Id. (quoting Chambers, 463 U.S. at 792, 103

293a

Appendix C

S.Ct. 3330). The appellate court rejected this argument,

explaining, “offering that language as a legal standard

confuses a sufficient condition for a necessary one.” Id.

The Court instead turned to Town of Greece v. Galloway:

[In Town of Greece], the Court asked whether

the town’s prayer practice “fit[] within,” [572

U.S. at 577, 134 S.Ct. 1811], or was “consistent

with the tradition of legislative prayer,” id. at

578 [134 S.Ct. 1811]. Accordingly, the Court

identified only three historical instances of

sectarian prayer before concluding that the

standard for consistency was satisfied. See id.

at 578-79 [134 S.Ct. 1811].

We follow the Court’s lead. So we ask whether

courtroom prayer is consistent with a broader

tradition of public, government-sponsored

prayer. See [McCar ty, 8 51 F. 3d at 527]

(concluding that prayer before school board

meetings was consistent with the broader

tradition of “opening meetings of deliberative

bodies with invocations”).

Mack, 49 F.4th at 951.

The Fifth Circuit then looked at the four categories

of historical evidence offered by plaintiffs: “first, the

behavior of early federal judges and Justices in courtrelated proceedings; second, the in-court behavior of

those judges and Justices; third, the in-court behavior of

non-federal judges; and fourth, indirect evidence of the

prevalence of courtroom prayer.” Id. The Court explained:

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That evidence is relevant, if at all, because

widespread practice around the Founding helps

reveal an amendment’s original public meaning.

See McDonald v. City of Chicago, 561 U.S. 742,

769-70 [130 S.Ct. 3020, 177 L.Ed.2d 894] (2010).

We address an incorporated amendment’s

application to a state, so we must also consider

practice around the time of incorporation [in

1868]. See id. at 770-78 [130 S.Ct. 3020] Our

analysis depends on “original meaning and

history,” with particular attention paid to

“historical practices.” [Kennedy, 142 S. Ct. at

2428] (quotation omitted).

Id. at 951 & n.7.

After undertaking this historical analysis (which

included an examination of briefs filed by amici), see

id. at 954-57, the Fifth Circuit ultimately determined

that, though some of plaintiffs’ criticism that Mack had

provided “selective, acontextual ‘law-office history’ . . .

ha[d] merit[,] . . . on the whole, Mack [had] identified

enough evidence to satisfy the legal standard.” Id. at

954. In doing so, the Court also “consider[ed] the two

most prominent Establishment Clause tests previously

used by the Supreme Court: ‘the endorsement test[] and

the coercion test.’” Id. (quoting McCarty, 851 F.3d at 525

(footnotes omitted)). But the appellate court emphasized:

We do not suggest that those tests govern our

overall analysis. History—not endorsement—

matters. Kennedy, 142 S. Ct. at 2427-28. Here,

295a

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we look to those tests for the limited purpose of

deciding whether historical evidence is similar

enough to the challenged practice to establish

consistency.

We do not, however, consider the Lemon test.

Its long Night of the Living Dead, Lamb’s

Chapel v. Moriches Union Free Sch. Dist., 508

U.S. 384, 398 [113 S.Ct. 2141, 124 L.Ed.2d 352]

(1993) (Scalia, J., concurring in the judgment),

is now over, Kennedy, 142 S. Ct. at 2427. And

it is too easily manipulated to shed light on

history’s relevance.

Id. at 954 n. 20.

After conducting this analysis, the Fifth Circuit found

that it would “include the first and second categories of

historical evidence in deciding whether courtroom prayer

is consistent with the relevant tradition.” Id. at 956.

The appellate court rejected the third category, which

consisted of “scattered instances of state-court prayer,

some of which occurred before the Establishment Clause

was incorporated against the states.” Id. at 956-57. The

appellate court found:

The history cannot tell us about what “coexisted

with the principles of disestablishment,”

Chambers, 463 U.S. at 786 [103 S.Ct. 3330], if

the actors did not consider themselves bound

by the principles of disestablishment. And,

although it is clear that prayer happened in

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state courts, there is too little evidence too

thinly spread to conclude that those prayers

occurred regularly.

Id. at 957. The fourth category was likewise rejected, as

“[i]t reflect[ed] the reality that courtroom prayer was at

least conceivable to some Americans[,] [b]ut it [could not]

independently establish anything with enough certainty.”

Id. Looking at all of this evidence, the Fifth Circuit

summarized its findings:

So, on the whole, we have convincing evidence

that it was common for Founding-era Justices

to preside over court-term-opening ceremonies

at which chaplains delivered prayers. We

have comparable evidence that those Justices

also personally delivered short, ecumenical

supplications in charges to grand jurors and,

sometimes, in their judicial opinions. And we

have a litany of short, ecumenical supplications

that federal courts have recited from the

Founding to the present.

We conclude that, under the methodology of

[Town of Greece], the evidence establishes that

courtroom prayer “fits within,” 572 U.S. at 577

[134 S.Ct. 1811], and is “consistent with the

tradition,” id. at 578 [134 S.Ct. 1811], of prayer

before “deliberative bodies,” McCarty, 851 F.3d

at 527. Although, as the plaintiffs and their

amici have pointed out, the probative value

of each item is less, there are still far more

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instances than the Supreme Court considered

sufficient to establish consistency. [Town of

Greece], 572 U.S. at 578-79 [134 S.Ct. 1811].

Id.

The Fifth Circuit then “ask[ed] whether Mack’s

particular practice [was] consistent with that tradition.”

Id. In doing so, the Court addressed three arguments

raised by plaintiffs as to “why that might not be so.” Id.

First, these plaintiffs contended that “Mack’s practice

[] include[d] prayers that [were] often decidedly sectarian.”

Id. (internal quotations omitted). The Fifth Circuit found

that any factual dispute here was “immaterial,” as the

“‘content of the prayer is not of concern to judges.’” Id.

(quoting Town of Greece, 572 U.S. at 581, 134 S.Ct. 1811

(quotation omitted)). “Once it invites prayer into the

public sphere, government must permit a prayer giver to

address his or her own God or gods as conscience dictates,

unfettered by what an administrator or judge considers

to be nonsectarian.” Id. (quoting Town of Greece, 572 U.S.

at 582, 134 S.Ct. 1811).

There is, however, a limiting principle: “If the

course and practice over time shows that the

invocations denigrate nonbelievers or religious

minorities, threaten damnation, or preach

conversion,” the invocations are inconsistent

with the public-prayer tradition. [Galloway,

572 U.S.] at 583 [134 S.Ct. 1811]. Prayer must

be “solemn and respectful in tone” and invite

298a

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officials to “reflect upon shared ideals and

common ends.” Id.

Id. at 958. Plaintiffs failed to meet this burden, as “[a]t

most, the plaintiffs’ accounts [] show[ed] that the contents

of the prayers delivered in Mack’s courtroom are quite

like the contents of the prayers in the historical record”

and “[t]here [was] no suggestion that Mack’s chaplains

ha[d] preached damnation, denigration, or conversion.” Id.

Second, the Mack plaintiffs argued that the justice of the

peace “fail[ed] to maintain a policy of nondiscrimination,”

id. at 957, but the Fifth Circuit rejected this stance, id. at

958. While Mack was required to “maintain[] a policy of

nondiscrimination,” he did not need to “search” or attempt

“to achieve religious balancing.” Id. (quoting Town of

Greece, 572 U.S. at 585-86, 134 S.Ct. 1811). The appellate

court concluded:

Mack maintains a policy of nondiscrimination

so long as (1) members of any faith are free

to participate in the JCC Program and (2)

he selects prayer-givers from among those

members w ithout regard for belief. The

plaintiffs have identified no evidence that

suggests those elements are unsatisfied.

So there is no material factual dispute on

nondiscrimination.

Id.

Third, plaintiffs argued that Mack’s practice was

inconsistent with the above tradition because “courtroom

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prayer inherently coerces attendees and that even if not,

the specific attributes of Mack’s prayer practice evince

coercion.” Id. at 957-58. “The coercion test asks whether

the government obliged objectors to participate in ‘a

formal religious exercise.’” Id. at 954 (quoting McCarty,

851 F.3d at 525 n.12). The Fifth Circuit “turn[ed] once

again to” Town of Greece and ultimately “assume[d],

without deciding, that Justice Kennedy’s approach in

[Town of Greece] controls the coercion standard.” Id. at

958-59.13 The Fifth Circuit summarized that standard as

follows:

13. The Fifth Circuit recognized that “[t]he [Town of Greece]

Court could not agree on the standard for showing that the

government coerced religious exercise.” Id. at 958 (citing Kennedy,

142 S. Ct. at 2429). The Fifth Circuit explained that there were

“four opinions relevant to the question [of] whether Mack’s practice

[was] coercive,” but the Court ultimately assumed that Justice

Kennedy’s controlled because:

Where no majority opinion governs an issue, ordinarily

we ask which position could sustain the Supreme

Court’s judgment “on the narrowest grounds,”

provided that “there is some common denominator

upon which all of the Justices of the majority can

agree.” But there is no reason to decide whether

Justice Kennedy’s or Justice Thomas’s approach is

the narrower ground for decision because any practice

deemed coercive under the latter approach will also be

coercive under the former. So if a plaintiff’s challenge

fails under Justice Kennedy’s approach, it “fails under

either standard.” Bormuth v. Cnty. of Jackson, 870

F.3d 494, 516 (6th Cir. 2017) (en banc). As we will

explain, that is so here.

Mack, 49 F.4th at 959 (footnotes omitted).

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A three-Justice plurality, led by Justice

Kennedy, recognized that objective evidence

that a person has been treated differently from

others, even if that difference is abstract, can

show coercion. The plurality’s approach is “factsensitive” and holistic. [Town of Greece], 572

U.S. at 587 [134 S.Ct. 1811]. But it emphasizes

that subjective offense “does not equate to

coercion.” Id. at 589 [134 S.Ct. 1811]. Reports

of subjective pressure to participate require

“evidentiary support,” such as indications that

“leaders allocated benefits and burdens based

on participation in the prayer, or that citizens

were received differently depending on whether

they joined the invitation or quietly declined.”

Id. Courts must assess “whether coercion is a

real and substantial likelihood.” Id. at 590 [134

S.Ct. 1811].

Mack, 49 F.4th at 958-59.14

Applying this test, the Fifth Circuit rejected

“plaintiffs’ theory that courtrooms are inherently coercive

[as] conflict[ing] with that test” because the Court was

“not free to invent [its] own legal standard” given the

“many factual similarities to Town of Greece” and the

town-board meetings there. Id. at 960. The plaintiffs

14. Justice Thomas’ “stricter coercion test . . . would recognize

coercion only as compulsion of religious orthodoxy and of financial

support by force of law and threat of penalty. In other words, the

perception of subtle pressure or government endorsement doesn’t

count.” Mack, 49 F.4th at 959 (cleaned up).

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could also not rely on a “perceived risk of prejudice”

because “[t]he plaintiffs must present evidence that any

such perception is objectively reasonable—evidence

from which we can conclude that ‘coercion is a real and

substantial likelihood.’” Id. The appellate court went on to

analyze the “two categories of evidence[—] first, evidence

regarding entry and exit from Mack’s courtroom; and

second, evidence concerning Mack’s decisions in cases

involving nonpraying litigants”—before concluding that

“Mack’s practice [was] noncoercive.” Id. at 961.

In sum, the Fifth Circuit found that the “history,

character, and context of Mack’s ceremony show that

it is no establishment” of religion. Id. (cleaned up). “To

maintain a lawful prayer ceremony, Mack must ensure that

(1) he has a policy of denominational nondiscrimination and

that (2) anyone may choose not to participate and suffer

no consequences. Mack has shown that the plaintiffs fail

materially to dispute those elements.” Id.

iv.

Synthesizing the Above Law

Having considered the history and development of

the recent Establishment Clause cases, the Court lays

out the following principles it draws therefrom and will

use in deciding this opinion.

First, while Kennedy did eliminate the Lemon and

endorsement tests, its focus on history and tradition was

consistent with cases that came before it like Town of

Greece. See Kennedy, 597 U.S. at 535-36, 142 S.Ct. 2407

(relying in part on Town of Greece, 572 U.S. at 576, 134

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S.Ct. 1811); see also Mack, 49 F.4th at 950-51. Under

Town of Greece and Kennedy, as interpreted by Mack, the

issue is whether the practice at issue “fits within” and is

“consistent with a broader tradition.” See Mack, 49 F.4th at

951 (quoting Town of Greece, 572 U.S. at 577-78, 134 S.Ct.

1811); see also Firewalker-Fields v. Lee, 58 F.4th 104, 122

n.6 (4th Cir. 2023) (“Identify the relevant tradition, then

determine whether the challenged practice is in or out.”).

Second, historical evidence is relevant because

“widespread practice around the Founding helps reveal

an amendment’s original public meaning[,]” as does the

practice “around the time of incorporation” in 1868. See

Mack, 49 F.4th at 951 & n.7 (citation omitted). See also id.

at 957 (“So, on the whole, we have convincing evidence

that it was common for Founding-era Justices to preside

over court-term-opening ceremonies at which chaplains

delivered prayers. We have comparable evidence that

those Justices also personally delivered short, ecumenical

supplications. . . .” (emphasis added)). Again, the “analysis

depends on ‘original meaning and history,’ with particular

attention paid to ‘historical practices.’” Id. at 951 (quoting

Kennedy, 597 U.S. at 535, 142 S.Ct. 2407). The Fifth

Circuit has relied on amici to shed light on the historical

analysis, and, for the same reasons, the Court finds

expert testimony on this issue relevant (though by no

means dispositive). See id. at 951-57. The burden on this

claim remains with the Plaintiff. See Croft, 624 F.3d at

164 (finding plaintiff asserting facial challenges under

the Establishment Clause had the burden). See also

Firewalker-Fields, 58 F.4th at 123 n.7 (“[T]he plaintiff

has the burden of proving a set of facts that would have

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historically been understood as an establishment of

religion. That requires proving both a set of facts, like

in all litigation, and proving that those facts align with

a historically disfavored establishmentarian practice.”

(citing Bruen, 597 U.S. at 25 n.6, 142 S. Ct. at 2130 n.6)).

Indeed, Mack’s reliance on Town of Greece’s analysis

and its approach as a whole make clear that historical

evidence is not only relevant but essential to resolving

these motions.

Third, Kennedy did not limit Establishment Clause

claims to Justice Gorsuch’s six hallmarks found in his

Shurtleff concurrence. See Kennedy, 597 U.S. at 536-37

& n.5, 142 S.Ct. 2407. In Kennedy, Justice Gorsuch used

language indicating that his Shurtleff hallmarks were

not an exhaustive list adopted by the Court. See id.15

Moreover, Kennedy acknowledged that, “Members of

15. The Kennedy opinion’s parenthetical explanation for

Justice Gorsuch’s Shurtleff concurrence specifically stated that

it “discuss[ed] coercion and certain other historical hallmarks

of an established religion[.]” 597 U.S. at 537 n.5, 142 S.Ct. 2407

(emphasis added) (citing Shurtleff, 596 U.S. at 284-87, 142 S. Ct.

at 1608-1610 (Gorsuch, J., concurring)). Moreover, in Kennedy,

the Court recognized that “coercion along the[] lines” of certain

types recognized by the Supreme Court, such as the prohibition on

the government from “coerc[ing] anyone to attend church,” id. at

537, 142 S.Ct. 2407 (quoting Zorach, 343 U.S. at 314, 72 S.Ct. 679),

or “forc[ing] citizens to engage in ‘a formal religious exercise,’”

id. (quoting Lee, 505 U.S. at 589, 112 S.Ct. 2649), were “among

the foremost hallmarks of religious establishments the framers

sought to prohibit when they adopted the First Amendment[,]” id.

(emphasis added) (citing, inter alia, Shurtleff, 596 U.S. at 284-87,

142 S. Ct. at 1608-1610 (Gorsuch, J., concurring)).

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this Court have sometimes disagreed on what exactly

qualifies as impermissible coercion in light of the original

meaning of the Establishment Clause.” Id. at 537, 142

S.Ct. 2407 (comparing Lee, 505 U.S. at 593, 112 S.Ct. 2649,

with id., at 640-41, 112 S.Ct. 2649 (Scalia, J., dissenting)).

Kennedy did not attempt to resolve that uncertainty and

disagreement. Finally, even AG Defendants acknowledged

at oral argument that Justice Gorsuch’s six hallmarks

are not an exhaustive set of criteria for determining the

viability of an Establishment Clause claim.

Fourth, Mack provides general guidance within

the Fifth Circuit for determining (a) what the relevant

tradition is and (b) whether a particular practice was

consistent with the tradition at issue. As to the former,

the Court must take heed “not to steer between Scylla

and Charybdis—/ only a razor-edge between the devil and

deep blue sea. . . .” Virgil, The A eneid 125.789-90 (Robert

Fagles trans., Penguin Books, 2008). That is to say, the

Court must not construe the tradition too broadly (e.g.,

as the Ten Commandments in all of public life at the time

of the Founding or Incorporation) or too narrowly (e.g.,

as exclusively the posting of the Decalogue according to

the minimum requirements of the Act during that time).

Rather, just as Mack identified the relevant tradition as

“a broader tradition of public, government-sponsored

prayer,” Mack, 49 F.4th at 951, so too does this Court

characterize the “broader tradition” as the use of the

Ten Commandments in public-school education. While

AG Defendants advanced at oral argument a different

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framing of the broader tradition,16 the Court agrees with

their characterization of the relevant practice as: the

permanent posting of the Ten Commandments in publicschool classrooms. Again, the question is whether there

was a “widespread practice” or whether the practice was

“common for Founding-era” public schools. See Mack, 49

F.4th at 951, 957. Evidence is insufficient if there are only

“scattered instances” or “too little evidence too thinly

spread to conclude that [the practice] occurred regularly.”

See id. at 957.

Fifth, again, Mack also provides general guidance

as to whether a particular practice is consistent with the

tradition at issue. One (but not the only) way a practice

may be inconsistent is when it is sectarian; that is, the

practice “denigrate[s] nonbelievers or religious minorities,

threaten damnation, or preach conversion” rather than be

“solemn and respectful in tone” and inviting others “to

reflect upon shared ideals and common ends.” Id. at 958

(quoting Town of Greece, 572 U.S. at 583, 134 S.Ct. 1811).

Additionally, the practice must “maintain[] a policy of

nondiscrimination.” Id. at 958 (quoting Town of Greece, 572

U.S. at 585, 134 S.Ct. 1811). The government does so by

ensuring that “members of any faith are free to participate

in the [] [p]rogram” and, in the context of public prayer,

ensuring that the government “selects prayer-givers from

among [its] members without regard for belief.” Id.

16. AG Defendants argued that the broader tradition in

which Plaintiffs must fit their challenge was Justice Gorsuch’s

six hallmarks. For the reasons given above, this Court disagrees.

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Sixth, under Kennedy and Mack, a particular practice

can also be inconsistent with the broader historical

tradition because it coerces religious exercise. As a general

matter, the analysis is “‘fact-sensitive’ and holistic.” Mack,

49 F.4th at 958-59 (quoting Town of Greece, 572 U.S. at

587, 134 S.Ct. 1811). “[S]ubjective offense ‘does not equate

to coercion.’” Id. (quoting Town of Greece, 572 U.S. at

589, 134 S.Ct. 1811). A plaintiff can show coercion with

“objective evidence that [he] has been treated differently

from others, even if that difference is abstract. . . .” Id.

at 959 (citing Town of Greece, 572 U.S. at 587, 134 S.Ct.

1811). The key questions are “whether coercion is a real

and substantial likelihood,” id., and whether “anyone may

choose not to participate and suffer no consequences,” id.

at 961.

Seventh, in the public-school context, the Establishment

Clause is not violated by “any visible religious conduct”

by a teacher or coach, as that would reflect a “hostilit[y]

to religion” that is prohibited. Kennedy, 597 U.S. at 54041, 142 S.Ct. 2407. But, coercion has been found in the

public-school context where “the school ha[s] ‘in every

practical sense compelled attendance and participation

in’ a ‘religious exercise.’” Id. at 541-42, 142 S.Ct. 2407

(quoting Lee, 505 U.S. at 580, 598, 112 S.Ct. 2649); see

also id. (citing Sante Fe Indep. Sch. Dist., 530 U.S. at

294, 311, 120 S.Ct. 2266). Students cannot be a “captive

audience” or “required or expected to participate.” See

id. Ultimately, as Justice Breyer said in Van Orden, in

distinguishing a display of the Ten Commandments on

courthouse grounds from the display in classrooms in

Stone, the “government must exercise particular care in

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separating church and state . . . on the grounds of a public

school . . . given the impressionability of the young. . . .”

Van Orden, 545 U.S. at 703, 125 S.Ct. 2854 (Breyer, J.,

concurring in judgment) (citing Lee, 505 U.S. at 592, 112

S.Ct. 2649). And, as Lee stated:

[T]here are heightened concerns with protecting

freedom of conscience from subtle coercive

pressure in the elementary and secondary

public schools. . . . Our decisions in Engel []

and [Schempp] recognize, among other things,

that prayer exercises in public schools carry a

particular risk of indirect coercion. The concern

may not be limited to the context of schools,

but it is most pronounced there. See [County

of Allegheny, 492 U.S. at 661, 109 S.Ct. 3086]

(KENNEDY, J., concurring in judgment in part

and dissenting in part). What to most believers

may seem nothing more than a reasonable

request that the nonbeliever respect their

religious practices, in a school context may

appear to the nonbeliever or dissenter to be an

attempt to employ the machinery of the State

to enforce a religious orthodoxy.

505 U.S. at 592, 112 S.Ct. 2649.

b.

Analysis

Having carefully considered the allegations of the

Complaint and accepting them as true at the Rule

12(b)(6) phase—which the Court must do—the Court

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finds that Plaintiffs have adequately pled a violation of

the Establishment Clause under Kennedy. As a result,

AG Defs. MTD will be denied on this issue.

With respect to history, Plaintiffs allege:

There is no longstanding tradition of permanently

displaying the Ten Commandments in publicschool classrooms in Louisiana or the United

States more generally. Indeed, for nearly half

a century, it has been well settled that the First

Amendment forbids public schools from posting

the Ten Commandments in this manner. See

Stone v. Graham, 449 U.S. 39, 101 S.Ct. 192,

66 L.Ed.2d 199 (1980)

(Compl. ¶ 2, Doc. 1; see id. ¶ 45.) The Complaint also

maintains that “[t]he Act includes false statements

relating to a purported history and connection between

the Ten Commandments and government and public

education in the United States[,]” such as the quote

allegedly attributed to James Madison, which Plaintiffs

claim “is fabricated” and was never said by Madison

“in any of his public or private writings or in any of his

speeches.” (Id. ¶¶ 42-44.)17

Even if there were a broader tradition, Plaintiffs also

sufficiently allege that the practice is not consistent with

17. The Court notes that Green’s testimony that this

Madison quote was fabricated was uncontradicted and, indeed,

unchallenged by AG Defendants.

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any tradition by being discriminatory and coercive.18

Concerning discrimination, the Complaint demonstrates—

“by the nature of the mandatory displays themselves, the

history of H.B. 71,” and statements of purpose made by

various lawmakers—“that the state’s main interest in

enacting and implementing H.B. 71 is the imposition of

religious beliefs on public-school children.” (Compl. ¶ 55,

Doc. 1.) Moreover,

H.B. 71 is not neutral with respect to religion.

By design, it expressly requires the display of

religious scripture—the Ten Commandments—

in every public-school classroom, and it

requires a specific, state-approved version of

that scripture to be posted, taking sides on

theological questions regarding the correct

content and meaning of the Decalogue.

(Id. ¶ 56.) This Act requires this despite the fact that many

Louisianians (like the Plaintiffs) (a) do not subscribe to the

18. The Court passes on the question of whether the Act is

sectarian. Specifically, the Court need not address whether H.B.

71’s mandatory display of “the first part of the Commandments

concern[ing] the religious duties of believers: worshipping the

Lord God alone, avoiding idolatry, not using the Lord’s name

in vain, and observing the Sabbath Day,” Stone, 449 U.S. at

42, 101 S.Ct. 192 (citing Exodus 20: 1-11; Deuteronomy 5: 6-15),

are inconsistent with historical practices by “denigra[ting]

nonbelievers or religious minorities, threaten[ing] damnation, or

preach[ing] conversion” rather than inviting students to “reflect

upon shared ideals and common ends,” Mack, 49 F.4th at 958

(citation omitted). While Plaintiffs make numerous allegations of

the extent to which they feel so denigrated, it is unnecessary to

resolve this issue in this ruling.

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specific version of the Ten Commandments listed in the

Act; (b) are not religious and do not agree with any version

of the Decalogue; or (c) believe in other religions (such

as Hinduism, Buddhism, and Taoism) that “generally do

not consider the commandments to be part of their belief

system.” (Id. ¶¶ 57-62.) The Complaint also highlights that

H.B. 71 requires a version of the Ten Commandments that

many Protestants use and that this is inconsistent with

versions recognized by Jews or Catholics. (Id. ¶¶ 63-67.)

Ultimately, while the Act need not “search or try to achieve

religious balancing,” Mack, 49 F 4th at 958 (cleaned up),

as pled, H.B. 71 fails to select both historical documents

generally and versions of the Ten Commandments in

particular “without regard for belief,” cf. id., and is thus

discriminatory as a matter of law.

Additionally, Plaintiff adequately pleads that the Act

is coercive. The Complaint concisely summarizes this

assertion as follows:

Permanently posting the Ten Commandments

in every Louisiana public-school classroom—

rendering them unavoidable—unconstitutionally

pressures students into religious observance,

veneration, and adoption of the state’s favored

religious scripture. It also sends the harmful and

religiously divisive message that students who

do not subscribe to the Ten Commandments—

or, more precisely, to the specific version of

the Ten Commandments that H.B. 71 requires

schools to display—do not belong in their

own school community and should refrain

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from expressing any faith practices or beliefs

that are not aligned with the state’s religious

preferences. And it substantially interferes with

and burdens the right of parents to direct their

children’s religious education and upbringing.

(Compl. ¶ 3, Doc. 1.)

Plaintiffs elaborate in detail on these allegations.

The Complaint correctly references the fact that, by law,

parents must send their minor children to school and ensure

attendance during regular school hours at least 177 days

per year. (Id. ¶¶ 69-70 (citing La. R.S. §§ 17:221(A)(1)(c),

154.1(A)(1)).) Further, as stated above, many children

and their families do not subscribe to this version of the

Ten Commandants, or any version. (Id. ¶¶ 72-75.) “Under

H.B. 71, each of these children will be forcibly subjected

to the state’s official version of the Ten Commandments

for nearly every hour that they are in school,” which,

cumulatively, amounts to at least 2,124 minimum number

of school days from age six to eighteen. (Id. ¶¶ 76-77.)

Plaintiffs also highlight certain requirements of the Act—

that the Decalogue be the “central focus,” in a certain

size, and printed in “large, easily readable font”—before

asserting, “[t]hese requirements are intended to, and will,

ensure that students are more likely to observe, absorb,

accept, and follow the Ten Commandments.” (Id. ¶¶ 78-79.)

That, indeed, is what the authors of the Act intended.19

19. Again, the Complaint alleges:

For example, during the House Education Committee’s

debate, Representative Horton, the primary author

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The Complaint recounts the legislative history (which

this Court quoted above) before concluding that, “[a]s a

result of the displays mandated by H.B. 71, students who

do not subscribe to the state’s official version of the Ten

Commandments—including minor-child Plaintiffs—will”

(1) “be pressured into religious observance, veneration,

and adoption of this religious scripture;” and (2) “will

feel pressure to avoid fully expressing or practicing their

own faiths and religious beliefs or nonreligious beliefs in

and sponsor of the bill, explained: “It is so important

that our children learn what God says is right

and what He says is wrong, and to allow [the Ten

Commandments] to be displayed in our classrooms

as a visual aid, I believe, especially in this day and

time is so important.” Horton later told a reporter

that she is only “concerned with our children looking

and seeing what God’s law is.” Representative Sylvia

Taylor, Horton’s co-author and co-sponsor of H.B.

71, similarly stated: “I really believe that we are

lacking in direction. A lot of people, their children,

are not attending churches or whatever . . . So what

I’m saying is, we need to do something in the schools

to bring people back to where they need to be.” And

Representative Roger Wilder, another co-author and

co-sponsor of H.B. 71, expressed his support for the

law by claiming that those who oppose it are waging

an “attack on Christianity” and suggesting that it

would provide a religious counterbalance to students’

secular education: “My wife is a Christian and if she

was a teacher she would be asked to teach evolution

which is in complete contradiction with the theory of

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

parent and am asking for this [bill].”

(Compl. ¶ 79, Doc. 1.)

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view of their peers, teachers and other school staff.” (Id.

¶¶ 79-81.) After describing in detail the specific ways each

of the named Plaintiffs will be harmed by H.B. 71, (see

Section II, “The Named Plaintiffs,” supra (citing generally

Compl. ¶¶ 82-155, Doc. 1)), the Complaint concludes this

point by stating:

A s a result of the Ten Commandments

displays mandated by H.B. 71, Louisiana

students—including minor-child Plaintiffs—

will be unconstitutionally coerced into religious

observance, veneration, and adoption of the

state’s favored religious scripture, and they

will be pressured to suppress their personal

religious beliefs and practices, especially in

school, to avoid the potential disfavor, reproach,

and/or disapproval of school officials and/or

their peers.

(Compl. ¶ 160, Doc. 1.)

Having considered Louisiana’s laws (including

the challenged Act and those dealing with mandatory

attendance) and having evaluated the above allegations in

light of the “fact-sensitive” and “holistic” inquiry required

by the Fifth Circuit in Mack, the Court finds that these

plaintiffs’ concerns rise far beyond “subjective offense”;

rather, Plaintiffs have shown a real and substantial

likelihood of coercion, 49 F.4th at 958-59, particularly

given the fact that, in the school context, coercion has

been found where “the school has in every practical sense

compelled attendance and participation in a religious

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exercise,” Kennedy, 597 U.S. at 541-42, 142 S.Ct. 2407

(cleaned up) (relying upon Lee, 505 U.S. at 580, 598, 112

S.Ct. 2649, and Sante Fe Indep. Sch. Dist., 530 U.S. at 311,

120 S.Ct. 2266); cf. Mack, 49 F.4th at 961 (stressing that,

to be constitutional, “anyone may choose not to participate

and suffer no consequences.”). Each of the Plaintiffs’ minor

children will be forced “in every practical sense,” through

Louisiana’s required attendance policy, to be a “captive

audience” and to participate in a religious exercise:

reading and considering a specific version of the Ten

Commandments, one posted in every single classroom,

for the entire school year, regardless of the age of the

student or subject matter of the course. And, despite the

differences among the Plaintiffs’ religious beliefs (be they

Unitarian Universalist, Reform Jewish, Presbyterian,

or atheist/agnostic), the common threads are (1) that the

required posting of the Decalogue conflicts with specific

parts of their faith, and (2) that one of those articles of

faith, shared by nearly all Plaintiff parents, is raising their

children in accordance with their own beliefs and values.

Considering the totality of the circumstances, the Court

finds that the Act and its requirements are coercive and

inconsistent with the history of First Amendment and

public education.

In sum, Plaintiffs have sufficiently alleged that the

Act violates the Establishment Clause because it does not

fit within and is not consistent with a broader tradition

in place at the time of the Founding or incorporation.

Moreover, even if there were a broader tradition in play,

the practice mandated by the Act would be inconsistent

with that tradition because it is discriminatory and

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coercive. For all these reasons, AG Defs. MTD on this

issue will be denied.

VI. AG Defs. MTD: Rule 12(b)(6) Motion: The Free

Exercise Clause Claim

A.

Parties’ Arguments

1.

AG Defendants’ Original Memorandum

(Doc. 39-1)

AG Defendants asser t that the Complaint is

implausible with respect to the Free Exercise claim for

three reasons. (Doc. 39-1 at 50.) First, “it defies common

sense to say that students will feel any alleged pressure if

they happen to view” one of the Illustrations offered by AG

Defendants such as Illustration 13, “Memes and Law,” or

Illustration 6, concerning Hamilton and Charlton Heston’s

The Ten Commandments. (Id. at 50-52.) “[S]eeing LinManuel Miranda’s clever spin on the Ten Commandments

may prompt an observer to watch Hamilton, but it would

not burden their religion or force them to change it any

more than it would coerce a student to duel.” (Id. at 52.)

Second, AG Defendants argue:

More fundamentally, the Free Exercise Clause

is not implicated here. As its name suggests, the

Free Exercise Clause protects only religious

exercise—believing, professing, and engaging

in “conduct motivated by religious belief.”

Church of Lukumi Babalu Aye, Inc. v. City of

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Hialeah, 508 U.S. 520, 543, 113 S.Ct. 2217, 124

L.Ed.2d 472 (1993). And nothing in the Free

Exercise Clause obligates the State to “comport

with the religious beliefs of particular citizens,”

or “demand[s] that the Government join in

[their] chosen religious practices.” Bowen v.

Roy, 476 U.S. 693, 699-700, 106 S.Ct. 2147, 90

L.Ed.2d 735 (1986).

(Id.) AG Defendants maintain that the nonreligious

Plaintiffs are not exercising religion at all, so their Free

Exercise claim must fail. (Id. at 53.) Others complain of

“objecting to” or being “offended” by H.B. 71, but, AG

Defendants claim, this too does not constitute an exercise

of religion. (Id.) Ultimately, “the Free Exercise Clause

does not compel government to affirm Plaintiffs’ chosen

religious practices.” (Id. at 53 (citing Bowen, 476 U.S. at

699, 106 S.Ct. 2147).)

In reality, Plaintiffs’ Free Exercise claim boils

down to a redux of their Establishment Clause

coercion theory—but this time characterized as

a substantial burden on their religious exercise.

To be sure, the Free Exercise Clause protects

against “indirect coercion or penalties on the

free exercise of religion, not just outright

prohibitions.” Carson v. Makin, 596 U.S. 767,

778, 142 S.Ct. 1987, 213 L.Ed.2d 286 (2022)

(citation omitted). But the government “do[es]

not engage in impermissible coercion merely

by exposing constituents to [something] they

would rather not hear and in which they need

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not participate.” Town of Greece, 572 U.S. at

590, 134 S.Ct. 1811 (emphasis added). Nor does

“[o]ffense . . . equate to coercion.” Kennedy, 597

U.S. at 539, 142 S.Ct. 2407 (quoting Town of

Greece, 572 U.S. at 589, 134 S.Ct. 1811). That

is no less true in classrooms where, “[i]f no

religious activity is at issue, any speculation

as to whether students might feel pressured

to participate is irrelevant.” Beaumont Indep.

Sch. Dist., 240 F.3d at 470 (emphasis added).

(Id.)

AG Defendants look to case law for comparable

situations. First, they analogize to students objecting to

the Pledge of Allegiance; schools cannot force a student

objecting on the basis of religion to recite the Pledge or

stand, but hearing the Pledge does not cause any Free

Exercise violation. (Id. at 53-54 (citations omitted).)

Additionally, AG Defendants say this case is like the motto

“In God We Trust,” which also is permissible. (Id. at 54.)

These defendants conclude this point by saying that, while

the State cannot force religious objectors to participate

in a religious exercise, “non-participatory exposure is

not” forbidden; though students may opt out of specific

activities, “they do not have a right to remove content

from the curriculum (or the classroom wall) because the

presence allegedly offends them.” (Id.)

Third, AG Defendants say that Plaintiffs cannot

demonstrate that the Act is “not neutral or generally

applicable.” (Id. (quoting Kennedy, 597 U.S. at 525, 142

318a

Appendix C

S.Ct. 2407).) “Government fails to act neutrally when it

proceeds in a manner intolerant of religious beliefs or

restricts practices because of their religious nature.” (Id.

at 54-55 (quoting Fulton v. City of Philadelphia, 593 U.S.

522, 533, 141 S.Ct. 1868, 210 L.Ed.2d 137 (2021) (citations

omitted)).) Here, H.B. 71 does not restrict anything and is

not “intolerant of religious beliefs.” (Id. (citations omitted).)

“If anything, it is exceedingly tolerant of beliefs across

faith traditions that espouse the Ten Commandments, by

urging education about the role of the Ten Commandments

in Louisiana, America[], and world history.” (Id. at 55.)

According to AG Defendants, any argument that the

State is being intolerant of other faiths would contradict

the Supreme Court’s Establishment Clause cases, like

Van Orden and American Legion, which upheld the

display of the Latin Cross. (Id.) Thus, H.B. 71 is neutral

as contemplated by the Supreme Court. (Id.)

Further, they claim the Act is generally applicable.

(Id.) Indeed, AG Defendants maintain that Plaintiffs do

not argue otherwise. (Id. at 55-56.)

2.

Plaintiffs’ Opposition (Doc. 47)

Plaintiffs respond that AG Defendants’ argument

about their allegedly innocuous illustrations are a “red

herring that prove[s] nothing other than the extraordinary

efforts that public schools might make to infuse scripture

into their classrooms, draw students’ attention to it, and

pressure them into observing, meditating on, venerating,

and living by its faith tenets.” (Doc. 47 at 48.) According

to Plaintiffs, AG Defendants concede that the Free

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Exercise Clause prohibits direct and “indirect coercion

and penalties on the free exercise of religion, not just

outright prohibitions.” (Id. (quoting Carson v. Makin, 596

U.S. 767, 778, 142 S.Ct. 1987, 213 L.Ed.2d 286 (2022)).)

Despite this, AG Defendants maintain that the Act is

merely “non-participatory exposure” to “unwelcomed

content.” (Id. (quoting Doc. 39-1 at 45).) But:

That characterization does not reflect the

wide-ranging, all-pervading nature of the

statutory regime, which capitalizes on the

State’s compulsory-education laws . . . and the

coercive school context . . . to impose on students

constant and unavoidable displays of the Ten

Commandments—the State’s preferred version,

no less—that will follow them throughout their

educational journeys.

(Id. at 48-49.)

Plaintiffs also take issue with the analogies AG

Defendants draw upon from case law. For example, AG

Defendants rely on Town of Greece to support their

position that the Act imposes mere “offense,” but Plaintiffs

respond:

[T]he Court’s assessment of coercion there was

premised wholly on the fact that the objectors

were “mature adults” who voluntarily attended

government meetings and were “free to enter

and leave with little comment and for any

number of reasons.” Town of Greece, 572 U.S.

320a

Appendix C

at 590 [134 S.Ct. 1811] (quoting Lee, 505 U.S. at

597, 112 S.Ct. 2649). The minor-child Plaintiffs,

by contrast, are students who are compelled by

law to attend school and are under the thumb

of State control while there—a distinction

recognized by the Court itself in Town of

Greece. Id. at 590-91 [134 S.Ct. 1811] (citing Lee,

505 U.S. at 597, 112 S.Ct. 2649). According to

the Court, “[s]hould nonbelievers choose to exit

the room during a prayer they find distasteful,

their absence will not stand out as disrespectful

or even noteworthy[,]” and “should they remain,

their quiet acquiescence will not, in light of our

traditions, be interpreted as an agreement with

the words or ideas expressed.” Id. at 590 [112

S.Ct. 2649]. It is an entirely different story

for children, who are “readily susceptible to

religious indoctrination or peer pressure.” See

id. (internal quotation marks omitted).

(Id. at 49.)

Likewise, AG Defendants’ reliance on Pledge of

Allegiance cases fails. (Id.) There, courts have emphasized

that the students were confronted with secular conduct,

whereas, here, the activity is religious. (Id.) Moreover,

there, students could opt out, which they cannot do

here. (Id. at 49-50.) The same goes for AG Defendants’

hypothetical challenge to evolution lessons or homework

on world affairs, both of which involve secular instruction,

not religious scripture. (Id. at 50.) Again, there is simply

no right to opt out of or avoid the displays mandated by

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Appendix C

the Act, and, in any event, the State’s curriculum does not

mention the Ten Commandments or tie them to same. (Id.)

In sum, the Act cannot be constitutionally

implemented because its mandatory, permanent

d isplays of the Ten Commandments i n

every classroom w ill “effectively induce

[] schoolchi ld ren t o med it at e upon the

Commandments dur ing the school-day.”

See City of Elkhart v. Books, 532 U.S. 1058,

1061, 121 S.Ct. 2209, 149 L.Ed.2d 1036 (2001)

(Rehnquist, C.J., dissenting from denial of

certiorari); see also Van Orden, 545 U.S. at 69091, 125 S.Ct. 2854 (plurality opinion). The Act

provides no path for objectors to opt out, and the

permanent, ubiquitous nature of the displays

offers no relief from them. As a result, students

will be coercively indoctrinated in the State’s

favored religious beliefs and concomitantly

pressured to suppress their own religious

beliefs and practices at school. That is anathema

to the “freedom of conscience and worship” that

the Free Exercise Clause embraces. See Lee,

505 U.S. at 591, 112 S.Ct. 2649; Pl. Br. at 20-22.

(Id. at 50-51.) In sum, Plaintiffs argue they have shown a

sufficient burden on their religious practice, “including but

not limited to the coercive effect the Act’s displays will have

on the minor-Plaintiffs’ expression and practice at school,

and the Act’s interference with the parent-Plaintiffs’ right

to direct the religious education and upbringing of their

children.” (Id. (citing Wisconsin v. Yoder, 406 U.S. 205,

232, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972)).)

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Appendix C

Plaintiffs also contend that the Act is not religiously

neutral. (Id. at 50, 52.) Plaintiffs maintain that the relevant

factors for determining neutrality under the Free Exercise

Clause include “the historical background of the decision

under challenge, the specific series of events leading to the

enactment or official policy in question, and the legislative

or administrative history, including contemporaneous

statements made by members of the decisionmaking

body.” (Id. at 52 (quoting Masterpiece Cakeshop, Ltd.

v. Colo. Civ. Rts. Comm’n, 584 U.S. 617, 638, 138 S.Ct.

1719, 201 L.Ed.2d 35 (2018) (internal quotation marks

omitted)).) Plaintiffs maintain that the “lack of neutrality”

is “evident from its text” and “is two-fold: (1) The Act

mandates the display of explicitly religious doctrine, and

(2) the particular text of the religious doctrine prescribed

by the Act is Protestant.” (Id.) This is particularly clear

given the fact that many Plaintiffs do not adhere to these

commandments, either generally or to the particular

version at issue. (Id.) Further, “[t]he legislative history

also evinces legislators’ deviation from neutrality.” (Id.)

Plaintiffs then recount some of the statements from

legislators supporting this. (Id. at 52-53.)

AG Defendants cannot “evade what is obvious from

the text of the Act itself and its legislative history” by

relying on Van Orden. (Id. at 53.) The setting in Van

Orden was “wildly different” from this one, and, in that

case, “the government there did not mandate the creation

of the display or select and approve its denominationally

preferential text,” whereas, “[h]ere, the State went

out of its way to require public-school displays of the

commandments and to select, vote on, and officially

approve the specific text to be used. . . .” (Id.)

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Appendix C

Plaintiffs argue that, as a result of the above analysis,

AG Defendants then have the burden of satisfying strict

scrutiny. (Id.) They claim that AG Defendants fail to

advance a compelling interest in “subjecting students—for

nearly every minute of the school day, year after year—to

religiously preferential displays of scripture in order to

show children ‘what God’s law is.’” (Id.) Moreover, even

if there were an educational or historical interest, the

law lacks narrow tailoring because “BESE could simply

update its own curricular standards, which currently

omit any mention of the commandments . . . and address

the commandments objectively through ‘an appropriate

study of history, civilization, ethics, comparative religion,

or the like.’” (Id. at 53-54 (quoting Stone, 449 U.S. at 42,

101 S.Ct. 192).)

3.

AG Defendants’ Reply (Doc. 54)

In reply, AG Defendants reiterate their assertion that

the Free Exercise claim is merely an effort to “repackage”

Plaintiffs’ Establishment Clause claim. (Doc. 54 at 24.) AG

Defendants first argue, “Plaintiffs fail to cite a single case

in which a court has held passive religious symbolism to

violate the Free Exercise Clause. That is because mere

non-participatory exposure to objectionable speech does

not violate the Free Exercise Clause.” (Id.) As with the

Pledge of Allegiance, they say, objectors have the right to

opt out, but not the right to stop it. (Id.) Though Plaintiffs

maintain they cannot opt out, here “there is nothing for

students to opt out from.” (Id.) Students are required to

recite the pledge, but, here, they need not do anything

with the displays mandated by H.B. 71. (Id.)

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Appendix C

Additionally, AG Defendants’ legal authority cannot be

written off on the grounds that the action there involved

“secular conduct.” (Id. at 25.)

The Free Exercise Clause does not depend on

whether the government’s action is religious;

it depends on whether the plaintiff’s religious

conduct is impermissibly burdened. Moreover,

just as the Pledge has “secular purposes”

even as it “acknowledg[es] . . . religious

heritage,” Croft, 624 F.3d at 167, so too the Ten

Commandments “have both a religious and

secular message,” Van Orden, 351 F.3d at 180.

(Id.)

Moreover, AG Defendants argue that, even if it

were possible that a Ten Commandments display could

rise to the level of coercion, their Illustrations do not.

(Id.) “Unlike the bare-bones display in Stone, displays

showcasing the Ten Commandments alongside other

historical documents, legal context, and pop-culture

references can have no conceivable tendency to coerce

students to ‘read, meditate upon, [or] perhaps to venerate

and obey, the Commandments.’” (Id. (quoting Stone, 449

U.S. at 42, 101 S.Ct. 192).)

Lastly, AG Defendants maintain that, if religious

exercise is implicated, H.B. 71 should be subject to

rational-basis review because it is neutral and generally

applicable. (Id.) They say the case relied upon by Plaintiffs

involved “government officials disparaging the claimant’s

325a

Appendix C

religion and penalizing its religious exercise under state

law.” (Id. (cleaned up).) AG Defendants contend that

Plaintiffs’ real argument is that any “‘explicitly religious’”

display of a “‘particular’ faith tradition is ‘presumptively

unconstitutional,’” but that this cannot be squared with

the fact that the same version of the Ten Commandments

was allowed by Van Orden. (Id. at 25-26 (quoting Doc. 47

at 41).) AG Defendants conclude:

H.B. 71 does not “infringe upon or restrict

practices because of their religious motivation.”

Lukumi, 508 U.S. at 533, 113 S.Ct. 2217. It does

not provide “a mechanism for individualized

objections” on religious or non-religious

bases. Fulton, 593 U.S. at 533, 141 S.Ct. 1868

(quotation omitted). And its “design” does not

demonstrate “deliberate[] disrespect[]” for any

faith. Am. Legion, 588 U.S. at 64 [139 S.Ct.

2067]. Thus, strict scrutiny does not apply.

Plaintiffs have forfeited any argument that H.B.

71 would fail under rational-basis review. The

Court should thus dismiss Count II for failure

to state a claim.

(Id. at 26.)

B. Law and Analysis

“The Free Exercise Clause of the First Amendment,

applicable to the States under the Fourteenth Amendment,

provides that ‘Congress shall make no law . . . prohibiting

the free exercise’ of religion.” Fulton, 593 U.S. at 532, 141

326a

Appendix C

S.Ct. 1868. “[T]he Free Exercise . . . Clause[] of the First

Amendment . . . protects religious exercises, whether

communicative or not. . . .” Kennedy, 597 U.S. at 523, 142

S.Ct. 2407 (citations omitted).

“At a minimum, the protections of the Free Exercise

Clause pertain if the law at issue discriminates against

some or all religious beliefs or regulates or prohibits

conduct because it is undertaken for religious reasons.”

Church of Lukumi Babalu Aye, 508 U.S. at 532, 113

S.Ct. 2217 (citations omitted). This “Clause[] requires

government respect for, and noninterference with, the

religious beliefs and practices of our Nation’s people.”

Cutter v. Wilkinson, 544 U.S. 709, 719, 125 S.Ct. 2113,

161 L.Ed.2d 1020 (2005).

“[A] plaintiff may carry the burden of proving a

free exercise violation in various ways, including by

showing that a government entity has burdened his

sincere religious practice pursuant to a policy that is not

‘neutral’ or ‘generally applicable.’” Kennedy, 597 U.S. at

525, 142 S.Ct. 2407 (citation omitted). “Should a plaintiff

make a showing like that, this Court will find a First

Amendment violation unless the government can satisfy

‘strict scrutiny’ by demonstrating its course was justified

by a compelling state interest and was narrowly tailored

in pursuit of that interest.” Id. (citation omitted).

Having carefully considered the matter, the Court

finds that Plaintiffs have established a viable Free

Exercise claim. First, they have sufficiently alleged that

the Act burdens their “sincere religious practice[s]” and

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Appendix C

beliefs. See id. As summarized above, the Complaint

describes in detail all of the ways in which the mandatory

display of the Ten Commandments in H.B. 71 conflicts

with and burdens the sincere beliefs of the Unitarian

Universalist, Presbyterian, agnostic or atheist, and

Reform Jewish Plaintiffs. (See Section II, “The Named

Plaintiffs,” supra (citing generally Compl. ¶¶ 82-155,

Doc. 1).) Specifically, the Act is at odds with, inter alia, (a)

Unitarian Universalist, agnostic, and atheist views about

proselytizing and the Ten Commandments generally;

(b) Reform Jewish tradition as to the particular content

of this specific version of the Decalogue and the need

to instruct about it in the context of that tradition; and

(c) Presbyterian teachings on the display of the Ten

Commandments by secular authorities. (See id.)

Additionally, there is another sincerely held religious

practice that the Act burdens. For over fifty years, the

Supreme Court has recognized “traditional concepts

of parental control over the religious upbringing and

education of their minor children. . . .” Yoder, 406 U.S. at

231, 92 S.Ct. 1526. That is, there is a “fundamental interest

of parents, as contrasted with that of the State, to guide

the religious future and education” and “to direct the

religious upbringing of their children.” Id. at 232-33, 92

S.Ct. 1526. See also id. at 234, 92 S.Ct. 1526 (“[W]e hold

. . . the First and Fourteenth Amendments prevent the

State from compelling [the Amish parent] respondents to

cause their children to attend formal high school to age

16.”). H.B. 71 violates this principle; as the Complaint

alleges, the Act “substantially interferes with and burdens

the right of parents to direct their children’s religious

328a

Appendix C

education and upbringing.” (Compl. ¶ 3, Doc. 1.) Thus,

Plaintiffs have established a burden on their sincerely

held religious beliefs.

The Court also easily rejects AG Defendants’

argument that the Act is neutral. “Government fails to

act neutrally when it proceeds in a manner intolerant of

religious beliefs or restricts practices because of their

religious nature.” Fulton, 593 U.S. at 533, 141 S.Ct. 1868

(citing Masterpiece Cakeshop, 584 U.S. at 636-39, 138

S. Ct. at 1730-1732; Church of Lukumi Babalu Aye, 508

U.S. at 533, 113 S.Ct. 2217).

“There are, of course, many ways of demonstrating

that the object or purpose of a law is the suppression of

religion or religious conduct.” Church of Lukumi Babalu

Aye, 508 U.S. at 533, 113 S.Ct. 2217. “To determine the

object of a law, [the Court] must begin with its text, for

the minimum requirement of neutrality is that a law not

discriminate on its face. A law lacks facial neutrality if it

refers to a religious practice without a secular meaning

discernable from the language or context.” Id.

But, “[f]acial neutrality is not determinative. The Free

Exercise Clause, like the Establishment Clause, extends

beyond facial discrimination.” Id. at 534, 113 S.Ct. 2217.

“The Free Exercise Clause bars even subtle departures

from neutrality on matters of religion.” Masterpiece

Cakeshop, 584 U.S. at 638, 138 S.Ct. 1719 (cleaned up).

“The Constitution ‘commits government itself to religious

tolerance, and upon even slight suspicion that proposals

for state intervention stem from animosity to religion

329a

Appendix C

or distrust of its practices, all officials must pause to

remember their own high duty to the Constitution and

to the rights it secures.’” Id. at 638-39, 138 S.Ct. 1719

(quoting Church of Lukumi Babalu Aye, 508 U.S. at 547,

113 S.Ct. 2217).

Thus, “[a]part from the text, the effect of a law in its

real operation is strong evidence of its object.” Church of

Lukumi Babalu Aye, 508 U.S. at 535, 113 S.Ct. 2217. “To

be sure, adverse impact will not always lead to a finding of

impermissible targeting. For example, a social harm may

have been a legitimate concern of government for reasons

quite apart from discrimination.” Id. (citations omitted).

But the laws at issue cannot “disclose an object remote

from these legitimate concerns. The designs of [the]

law[]” cannot “accomplish[] . . . a religious gerrymander,

an impermissible attempt to target” the Plaintiffs “and

their religious practices.” Id. (cleaned up).

Additionally, “[f]actors relevant to the assessment

of governmental neutrality include ‘the historical

background of the decision under challenge, the specific

series of events leading to the enactment or official policy

in question, and the legislative or administrative history,

including contemporaneous statements made by members

of the decisionmaking body.’” Masterpiece Cakeshop, 584

U.S. at 639, 138 S.Ct. 1719 (quoting Church of Lukumi

Babalu Aye, 508 U.S. at 540, 113 S.Ct. 2217). “These

objective factors bear on the question of discriminatory

object.” Church of Lukumi Babalu Aye, 508 U.S. at 540,

113 S.Ct. 2217 (citing Pers. Admin. of Mass. v. Feeney, 442

U.S. 256, 279 n.24, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979)).

330a

Appendix C

Here, the Court finds that H.B. 71 is not neutral

toward religion. As stated throughout this opinion, the

Act requires the display of a specific Protestant version of

the Decalogue. Again, this required display conflicts with

the religious views of Unitarian Universalists, agnostics,

atheists, Presbyterians, and Reform Jewish parents,

particularly about proselytizing, the Ten Commandments

(both generally and this version), and the role of the

secular authorities. (See Compl. ¶¶ 82-155, Doc. 1.) AG

Defendants argue that H.B. 71’s version of the Decalogue

is identical to the one upheld in Van Orden, but (a) as the

plurality pointed out, that case was a “far more passive

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

students were captive audiences, Van Orden, 545 U.S.

at 691, 125 S.Ct. 2854 (plurality opinion), and, (b) the

specific context of that particular, single display made

it acceptable, part of which context included that “[t]he

display [was] 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,” id. at 703, 125 S.Ct. 2854 (Breyer, J., concurring

in judgment) (citations omitted).

Additionally, the legislative history confirms that

the Act “proceed[ed] in a manner intolerant of religious

beliefs.” Fulton, 593 U.S. at 533, 141 S.Ct. 1868. Again,

the Act’s primary author and sponsor, Rep. Dodie

Horton, declared of H.B. 71 in the Louisiana House

Chamber, “I’m not concerned with an atheist. I’m not

concerned with a Muslim. I’m concerned with our children

looking and seeing what God’s law is.” La. House Reg.

Sess. (Apr. 10, 2024), at 47:42, https://house.louisiana.

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gov/ H_Video/ VideoA rchivePlayer?v=house/2 02 4 /

apr/0410_24_24RS_Day16; see also La. State Legislature

(Sept. 16, 2024), https://www.legis.la.gov/legis/BillInfo.

aspx?s=24rs&b=HB71 (describing Rep. Horton as

“primary” author). Rep. Horton also stated during the

House Education Committee debate on the bill: “It is

so important that our children learn what God says is

right and what He says is wrong and to allow [the Ten

Commandments] to be displayed in our classrooms

as a visual aid, I believe, especially in this day and

time is so important.” La. House Educ. Comm. (Apr.

4, 2024), at 5:08, https://house.louisiana.gov/H_Video/

VideoArchivePlayer?v=house/2024/apr/0404_24_ED.3.

Representative Sylvia Taylor, another author of H.B,

71, similarly said, “I believe that we are lacking in

direction. A lot of people, their children, are not attending

churches or whatever. . . . So what I’m saying is, we

need to do something in the schools to bring people

back to where they need to be.” Id. at 15:15; La. State

Legislature (Sept. 16, 2024), https://www.legis.la.gov/

legis/BillInfo.aspx?s=24rs&b=HB71 (describing Rep.

Taylor as another author). And all of this must be seen in

the context of (1) the fact that AG Defendants offer little

from the legislative history to rebut Plaintiffs, and (2)

the Governor’s statement in response to this challenge

to H.B. 71 that supporters should help him “ADVANCE

[] the Judeo-Christian values that this nation was built

upon.” Wall, supra, at note 5. Thus, in addition to the Act’s

plain language and effects, H.B. 71’s legislative history

confirms that the law’s “departures from neutrality on

matters of religion” are more than “subtle.” Masterpiece

Cakeshop, 584 U.S. at 638-39, 138 S.Ct. 1719 (cleaned up);

332a

Appendix C

see also Church of Lukumi Babalu Aye, 508 U.S. at 54042, 113 S.Ct. 2217 (noting in its finding of no neutrality that

“[t]he minutes and taped excerpts of the June 9 session

. . . evidence significant hostility exhibited by residents,

members of the city council, and other city officials toward

the Santeria religion and its practice of animal sacrifice.”).

Since the Act is not neutral, the Court turns to the

next phase of the analysis. “A law burdening religious

practice that is not neutral or not of general application

must undergo the most rigorous of scrutiny.” Church of

Lukumi Babalu Aye, 508 U.S. at 546, 113 S.Ct. 2217. “To

satisfy the commands of the First Amendment, a law

restrictive of religious practice must advance “‘interests

of the highest order’” and must be narrowly tailored in

pursuit of those interests.” Id. (citations omitted). “A law

that targets religious conduct for distinctive treatment or

advances legitimate governmental interests only against

conduct with a religious motivation will survive strict

scrutiny only in rare cases.” Id.

Here, AG Defendants failed to satisfy these

requirements. Even assuming that H.B. 71 advanced

a compelling interest (e.g., for educational or historical

value), the Act is unquestionably not “narrowly tailored in

pursuit of those interests.” Id. (citations omitted). There

are any number of ways that the State could advance

an alleged interest in educating students about the Ten

Commandments that would be less burdensome on the

First Amendment than the one required by the Act,

including but not limited to: (1) posting the laws for a

designated amount of time (i.e., days or hours) rather than

333a

Appendix C

every day, all year around; (2) displaying them only when

the students reach a particular age (like one in which they

are able to read and understand the elevated language of

the King James version of the Bible and to discuss or at

least consider the sensitive issue of adultery); (3) using

them in relevant course curricula (like social studies or

world religions), rather than any subject matter, regardless

of pertinence (like trigonometry, biology, and even gym

class); or (4) having one single display at school (like the

monument in Van Orden) rather than countless posters in

every single classroom at the institution regardless of the

subject taught. In short, H.B. 71 is not narrowly tailored,

so it must fall under the Free Exercise Clause. See id.

(“The absence of narrow tailoring suffices to establish the

invalidity of the ordinances.” (citation omitted)).

The Court also rejects AG Defendants’ arguments

that (1) the Act is not coercive; (2) this case is no different

than those involving issues like the Pledge of Allegiance,

where students can opt out; and (3) that, at heart, Plaintiffs

are really themselves showing a hostility to any religion

by trying to suppress it. All of these arguments were

addressed above in reference to the Establishment

Clause. In short, the Act is coercive to students, and, for

all practical purposes, they cannot opt out of viewing the

Ten Commandments when they are displayed in every

classroom, every day of the year, every year of their

education. As the Supreme Court recognized 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[,]” Stone, 449 U.S. at 42, 101 S.Ct. 192,

334a

Appendix C

and this is particularly true considering the “heightened

concerns with protecting freedom of conscience from

subtle coercive pressure in the elementary and secondary

public schools,” Lee, 505 U.S. at 592, 112 S.Ct. 2649.

AG Defendants complain that Plaintiffs merely

“repackage” their arguments about the Establishment

Clause; but, this position ignores the fact that “the

[two] Clauses appear in the same sentence of the

same Amendment[,]” and “[a] natural reading of that

[Amendment] would seem to suggest the Clauses have

complementary purposes, not warring ones where one

Clause is always sure to prevail over the others.” Kennedy,

597 U.S. at 533, 142 S.Ct. 2407 (cleaned up). The same

reasoning applies here.

In sum, the Court finds that Plaintiffs have stated a

viable Free Exercise claim. As a result, AG Defs. MTD

will be denied on this issue.

VII. Pls. MPI

A.

Parties’ Arguments

Plaintiffs move for a preliminary injunction seeking

the following relief:

Plaintiffs pray that this Court: preliminarily

enjoin (1) all Defendants and their officers,

agents, affiliates, subsidiaries, servants,

employees, successors, and all other persons

or entities in active concert or privity or

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Appendix C

participation with them, from adopting rules

or regulations in accordance with, or otherwise

enforcing, House Bill No. 71, Act No. 676, and

from requiring that the Ten Commandments

be displayed in every public-school classroom in

Louisiana; and (2) the School Board Defendants

and their officers, agents, affiliates, subsidiaries,

servants, employees, successors, and all other

persons or entities in active concert or privity or

participation with them from displaying the Ten

Commandments in any public-school classroom.

Plaintiffs further pray that this Court issue

an order directing Defendants Brumley and

the members of the Louisiana State Board

of Elementary and Secondary Education to

provide a copy of any preliminary injunction

granted to all Louisiana public elementary,

secondary, and charter schools, and all public

post-secondary education institutions.

(Doc. 20 at 3.) They also maintain that the requirement of

posting a bond should be waived because (1) the injunction

seeks non-monetary relief; (2) “the gravity of interest is

great”; and (3) AG Defendants cannot show a likelihood

of harm or loss if the injunction is granted. (Id. at 3 n.1

(citations omitted).)

Plaintiffs argue that they satisfy the four requirements

for a preliminary injunction. (See Doc. 20-1.) They have

established a substantial likelihood of relief, for all the

reasons given above. (See also id. at 12-29.) Where First

Amendment plaintiffs make this showing, the other

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injunction factors are typically presumed. (Id. at 29.)

Further, Plaintiffs have shown irreparable injury because

of the violation of their First Amendment freedoms. (Id.)

Plaintiffs also contend that the public interest and balance

of potential harms weigh in their favor; there is no harm

because the preliminary injunction merely preserves

the status quo, and the public interest would be served

by preventing the violation of their constitutional rights.

(Id. at 29-30.)

AG Defendants oppose the motion. (Doc. 39-1 at 56.)

They argue first that, if the Court grants their motions

to dismiss, Pls. MPI should be denied as moot. (Doc. 39-1

at 56.)

But, if the Court denies AG Defs. MTD, then, AG

Defendants argue, the Court should still deny Pls.

MPI. (Id.) First, for all the reasons they give above, AG

Defendants contend that Plaintiffs are unlikely to succeed

on the merits, either from jurisdictional defects or from

a failure to state a claim. (Id.)

Second, these defendants assert that Plaintiffs will not

suffer irreparable harm if an injunction is not granted. (Id.

at 57.) AG Defendants again reiterate the above arguments

for this issue as well. (Id.)

Third, AG Defendants assert that the equities and

public interest weigh in their favor. (Id.) The State and

its citizens will suffer if their statute is not implemented,

and it is inequitable to grant an injunction when AG

Defendants must decide how to comply with H.B. 71 before

the January 1, 2025, implementation deadline. (Id.)

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Fourth, AG Defendants attack the request for an

order that Brumley and the BESE Members provide a

copy of the preliminary injunction to all Louisiana public

elementary, secondary, and charter schools and all public

post-secondary institutions. (Id.) AG Defendants say State

officials should not be “coopt[ed] . . . for that purpose,”

and, in any event, the injunction should not apply to all

schools in Louisiana since Plaintiffs only chose to sue a

small number of Defendants. (Id. at 57-58.)

Plaintiffs reply that each relevant factor weighs in

favor of a preliminary injunction. (Doc. 47 at 54.) First,

for all the reasons they advance above, Plaintiffs have

shown a likelihood of success on the merits. (Id.) Second,

the loss of First Amendment freedoms constitutes

irreparable injury, and Plaintiffs have shown that loss.

(Id.) Third, Plaintiffs stress that injunctions protecting

First Amendment freedoms serve the public interest,

and any harm AG Defendants will suffer is outweighed

by the facts that (a) the statute violates federal law and

(b) the other injunction requirements weigh in Plaintiffs’

favor. (Id. at 54-55.)

B. Law and Analysis

A plaintiff must demonstrate four requirements to

obtain a preliminary injunction:

1) a substantial likelihood of success on the

merits; 2) a substantial threat that he will suffer

irreparable injury if the injunction is not issued;

3) that the threatened injury to him outweighs

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any damage the injunction might cause to the

state and its citizens; and 4) that the injunction

will not disserve the public interest.

Ingebretsen, 88 F.3d at 278 (citing Doe v. Duncanville

Indep. Sch. Dist., 994 F.2d 160, 163 (5th Cir. 1993)

(citations omitted)).

Here, Plaintiffs have satisfied all of these requirements.

The Court will address each of them in turn.

1.

Substantial Likelihood of Success

First, for all the reasons given above, Plaintiffs have

shown a substantial likelihood of success on the merits.

The Court’s approach in resolving the merits of Plaintiffs’

claims was summarized above, and it need not be repeated

in full here.

In short, the Court must determine whether the

practice at issue “fits within” and is “consistent with a

broader tradition.” See Mack, 49 F.4th at 951 (cleaned

up). Historical evidence is critical because “widespread

practice around the Founding helps reveal an amendment’s

original public meaning,” as does the practice “around the

time of incorporation” in 1868. See id. (citations omitted).

The question is whether there was a “widespread practice”

or whether the practice was “common for [the] Foundingera. . . .” See id. at 951, 957. Evidence is insufficient if there

are only “scattered instances” or “too little evidence too

thinly spread to conclude that [the practice] occurred

regularly.” See id. at 956-57.

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Additionally, a practice can be inconsistent with a

tradition by being discriminatory or by coercing religious

exercise. Id. at 958. As to the former, the government

must ensure that “members of any faith are free to

participate in the [] [p]rogram” and that it acts “without

regard for belief.” See id. As to coercion, the analysis is

“fact-sensitive and holistic,” id. at 958-59 (cleaned up);

the key questions are “whether coercion is a real and

substantial likelihood,” id. at 959 (citation omitted), and

whether “anyone may choose not to participate and suffer

no consequences,” id. at 961. Coercion has been found in

the public-school context where “the school ha[s] ‘in every

practical sense compelled attendance and participation

in’ a ‘religious exercise.’” Kennedy, 597 U.S. at 541, 142

S.Ct. 2407 (citation omitted). Students cannot be a “captive

audience” or “required or expected to participate.” See id.

at 542, 142 S.Ct. 2407. Again:

[T]here are heightened concerns with protecting

freedom of conscience from subtle coercive

pressure in the elementary and secondary

public schools. . . . What to most believers may

seem nothing more than a reasonable request

that the nonbeliever respect their religious

practices, in a school context may appear to

the nonbeliever or dissenter to be an attempt

to employ the machinery of the State to enforce

a religious orthodoxy.

Lee, 505 U.S. at 592, 112 S.Ct. 2649 (citations omitted).

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Appendix C

As stated above, the broader tradition at issue is the

use of the Ten Commandments in public education. The

Court finds that there is insufficient evidence of such a

broader tradition to justify H.B. 71. Indeed, none of the

primary documents offered by AG Defendants—The New

England Primer, the McGuffey Readers from the 1800s,

or Noah Webster’s The American Spelling Book (Faircloth

Decl., Exs. G-8 through G-18, Docs. 59-9 through 59-19)—

reflect any sort of tradition of permanently displaying the

Decalogue in public-school classrooms at the time of the

Founding or of incorporation.

On this key question of whether the practice at

issue fits within a broader tradition existing at the time

of the founding, Plaintiffs offered the testimony of Dr.

Steven K. Green which the Court heard at the hearing

on October 21, 2024. The Court found Green to be highly

qualified and concluded that he utilized an adequate and

standard methodology used by historians. (See Ruling

on AG Defs. Daubert Motion, Doc. 83.) The Court had

the opportunity to judge his demeanor and finds that the

witness was credible and his testimony on this issue was

well supported and persuasive. The Court rejects the AG

Defendants’ charge of bias. The Court notes that not only

did the AG Defendants fail to offer contrary or competing

expert testimony on this critical issue, but they also failed

to seriously challenge any of Green’s substantive opinions

on the merits of this issue.

Green testified that, at the time the U.S. Constitution

and First Amendment were drafted, public schooling

was essentially nonexistent. (Green Report ¶ 34, Doc.

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Appendix C

47-2; Green Decl. ¶ 5, Doc. 47-1 (affirming contents of

report).) Green explained that education at the time of

the Founding occurred in private academies or through

tutors and generally had a strong religious component

due to the dominance of clergy as teachers. (Green

Report ¶ 34, Doc. 47-2.) Quasi-public-school prototypes

existed in New England, but they required parents to

pay a rate, were largely taught by clergy, and primarily

had a religious purpose of making Christians. (Id.) Early

textbooks like The New England Primer were chiefly

designed to inculcate religious fealty. (Id.) Thus, as Green

opined, practices in these schools provide little insight into

public education and the Ten Commandments. (Id.) Green

further stated that there is a lack of evidence that these

schools permanently displayed the Ten Commandments

on classroom walls. (Id.)

Green also said that publicly operated and funded

“common schools” developed in the early 1800s. (Id.

¶ 35.) After discussing these schools, Green concluded:

“Looking more specifically at the Ten Commandments,

the evidence for a longstanding historical practice and

acceptance of widespread and permanent displays of the

Ten Commandments in public-school classrooms does

not exist.” (Id. ¶ 39.) Moreover, as will be explored below,

Green looked at the AG Defendants’ tendered evidence

and found:

[A]s a matter of historical methodology and

analysis, the common schools’ use of these

Readers or Webster’s Spelling Book, standing

alone, does not prove H.B. 71’s broad assertion

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Appendix C

that the “Ten Commandments were a prominent

part of American public education for almost

three centuries.” Nor does it demonstrate

a longstanding historical acceptance of an

entirely distinct practice —permanently

displaying the Ten Commandments in publicschool classrooms.

(Id. ¶ 44.)

Green relied on other evidence to support his conclusion

that there was no longstanding, widespread use of the Ten

Commandments in public education by focusing on the

lack of evidence supporting the permanent displaying

of the Ten Commandments in public-school classrooms.

(Id. ¶ 45.) First, Green believed that, as a historian, since

there was “substantial religious turmoil and conflict that

arose from the incorporation of prayer and Bible reading

into some common schools,” he would have expected to

see a similar response if undue emphasis was placed on

Readers lessons involving the Ten Commandments or

permanently displaying them. (Id.) But, only two of the

above reported cases involved the Ten Commandments,

and neither involved displaying them on classroom walls.

(Id. (citing Commonwealth v. Cooke, 7 Am. L. Reg. 417-26

(Mass. 1859); Pfeiffer v. Bd. of Educ., 118 Mich. 560, 77

N.W. 250 (1898)).) The Court notes that only the former

case took place around the time of incorporation.

Second, surveys conducted by the U.S. Commissioner

of Education in the 1880s and 1890s “did not reflect

any specific, routine practice of displaying the Ten

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Commandments in classrooms or otherwise using them

in instruction.” (Id. ¶ 46.)

Third, Green examined a popular nineteenthcentury legal treatise—Thomas Cooley’s Constitutional

Limitations. (Id.) Each edition of Cooley’s treatise

contained information about religious liberty and religious

exercises in public schools. (Id.) And there was no reference

in this treatise to the posting of the Ten Commandments

or their use in public-school curricula. (Id.)

Four th, to Green’s knowledge, “no state law

specifically permitted or mandated the posting of the

Ten Commandments in public schools prior to 1927.” (Id.

¶ 47.) The first state law specifically allowing the display

of the Decalogue was in 1927 in North Dakota, but that

was struck down in 1980. (Id. ¶ 47 & n.76.)

Considering this evidence, Green concluded:

Based on all the factors discussed above,

supra ¶¶ 34-47, and the lack of compelling

counterevidence, it is my expert judgment

that the Ten Commandments were not “a

prominent part of American public education

for almost three centuries,” as H.B. 71 claims.

Nor more specifically, in my expert opinion,

is there evidence of a longstanding, let alone

unbroken, historical acceptance and practice

of widespread, permanent displays of the Ten

Commandments in public schools.

(Id. ¶ 48.)

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Appendix C

Green also rebutted the historical evidence offered by

AG Defendants. By way of background, the Act contains

certain legislative findings and declarations. H.B. 71(A).

After setting forth some general history about the role of

the Ten Commandments in public life, 20 the Act declares,

“[i]ncluding the Ten Commandments in the education

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

culture, and tradition.” H.B. 71(A)(4)-(5). The context

statement for the Act then provides the basis for AG

Defendants’ historical evidence:

The History of the Ten Commandments in

American Public Education

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

20. This includes: (a) the Supreme Court’s upholding of the

display in Van Orden; (b) the Louisiana Legislature’s enacting of

Act No. 602 of its 2006 Regular Session, which provided “for the

secretary of state to publish the Ten Commandments and other

historically significant documents for posting in court houses and

other public buildings to address ‘a need to educate and inform the

public as to the history and background of American and Louisiana

law;’” and (c) the Supreme Court’s recognition in American Legion

that the Ten Commandments “have historical significance as one

of the foundations of our legal system” and the Court’s alleged

ruling that the display of Ten Commandments on public property

could have “‘multiple purposes’” such as “‘historical significance’”

and representing a “‘common cultural heritage.’” H.B. 71(A)(1)(3) (quoting, inter alia, American Legion, 588 U.S. at 53-54, 139

S.Ct. 2067).

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Appendix C

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 [] which

were widely used in American public schools

along with America’s first comprehensive

dictionary that Webster also published. His

textbook, The Amer ican 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.

H.B. 71(B)(3).

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Appendix C

But Green systematically dismantled this purported

historical evidence and its conclusions. Green’s conclusions

about the New England Primer and education before

the nineteenth century were given above and need not

be repeated here. (See also Green Report ¶ 34, Doc. 472.) Again, Green explained in his report that publicly

operated and funded “common schools” developed in the

early 1800s. (Id. ¶ 35.) Massachusetts was the first state to

mandate universal “non-sectarian” public education, and

its board of education, led by Horace Mann, eliminated

doctrinal religious instruction but retained the use of the

Bible to inculcate “universal” Christian morals. (Id.) The

Bible was read without “note or comment,” to “let the Bible

speak for itself.” (Id.) Other states followed suit, offering

liberal education with some “nonsectarian” religious

activities like prayer and Bible reading. (Id.)

Green highlighted though, how even these activities

were “deeply controversial and not universality accepted;”

for instance, the use of the Protestant King James Bible

drew opposition from Catholics and Jews. (Id. ¶ 36.)

Green provided some details on that conflict in the 1840s,

including the Philadelphia “Bible riots” as well as the

following:

In 1840, the nation’s Catholic bishops issued a

pastoral letter denouncing the use of the King

James Bible and Protestant-biased textbooks,

such as the McGuffey Reader: “We can scarcely

point out a book in general use in the ordinary

schools . . . wherein covert and insidious efforts

are not made to misrepresent our principles, to

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Appendix C

distort our tenets, to vilify our practices, and

to bring contempt upon our Church.”

(Id.)

Green also documented about thirty reported

decisions between 1850 and 1960 involving challenges to

public-school religious exercises. (Id. ¶ 37.) Green said

this demonstrates that practices were not universally

permitted or accepted. (Id.) One of these was from 1854,

and three were in the 1880s. (Id. ¶ 37 n.59.) Green also

highlighted other evidence supporting the conclusion that,

in the late nineteenth century, the prevalence of religious

exercises in schools declined significantly. (Id. ¶ 38.)

Green then turned to the Act’s context statement

itself and asserted:

[E]xamining these sources [(i.e., the New

England Primer, the McGuffey Readers, and

Webster’s American Spelling Book)] and their

use in more detail, it is my conclusion that the

evidence cited in H.B. 71 does not support the

broad assertion that “the Ten Commandments

were a prominent part of American public

education for almost three centuries.”

(Id. ¶ 40.) First:

[T]he New England Primer, which first

appeared around 1690 and was republished into

the early nineteenth century, had the central

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Appendix C

purpose of inculcating religious fealty along

sectarian, Calvinist lines—“the primer was a

codification of primary religious creed.” But

the Primer was used chiefly, if n

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