Petition for Writ of Certiorari — Mara Nathan, Individually and on Behalf of Her Minor Child, M. N., et al., Petitioners v. Alamo Heights Independent School District, et al.

Supreme Court briefAug 17, 2026

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No. 26In the

Supreme Court of the United States

RABBI MARA NATHAN, ON BEHALF OF HERSELF

AND ON BEHALF OF HER MINOR CHILD, M.N., et al.,

Petitioners,

ALAMO HEIGHTS INDEPENDENT

SCHOOL DISTRICT, et al.,

Respondents.

ROXANNE CRIBBS RINGER, ON BEHALF OF HERSELF

AND ON BEHALF OF HER MINOR CHILD, E.R., et al.,

Petitioners,

COMAL INDEPENDENT SCHOOL DISTRICT, et al.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of A ppeals for the Fifth Circuit

JOINT PETITION FOR A WRIT OF CERTIORARI

Daniel Mach

Heather L. Weaver

A merican Civil Liberties

Union Foundation

915 15th Street, NW,

Suite 600

Washington, D.C. 20005

Cecillia D. Wang

Evelyn R. Danforth-Scott

A merican Civil Liberties

Union Foundation

425 California Street,

Suite 700

San Francisco, CA 94104

Jonathan K. Youngwood

Counsel of Record

Janet A. Gochman

Griselda Cabrera

Noah M. Huffman

Simpson Thacher

& Bartlett LLP

425 Lexington Avenue

New York, NY 10017

(212) 455-2000

jyoungwood@stblaw.com

V. Noah Gimbel

Jordan T. Krieger

Simpson Thacher

& Bartlett LLP

900 G Street, NW

Washington, D.C. 20001

Additional Counsel Listed On Inside Cover

Louise Melling

A merican Civil Liberties

Union Foundation

125 Broad Street,

18th Floor

New York, NY 10004

A driana Piñon

Thomas Buser-Clancy

Chloe Kempf

Sarah Corning

A merican Civil Liberties

Union Foundation Of Texas

P.O. Box 8306

Houston, TX 77288

Patrick C. Elliott

Samuel T. Grover

Nancy A. Noet

Freedom From Religion

Foundation

P.O. Box 750

Madison, WI 53701

Rebecca S. Markert

A lex J. Luchenitser

A my Tai

Jess Zalph

A mericans United

For Separation

Of Church & State

1310 L Street, NW,

Suite 200

Washington, D.C. 20005

QUESTIONS PRESENTED

Nearly fifty years ago, Stone v. Graham, 449 U.S.

39 (1980) (per curiam), held that permanently posting

the Ten Commandments in public-school classrooms

violates the Establishment Clause. And Mahmoud v.

Taylor, 606 U.S. 522 (2025), recently reaffirmed that

public schools burden parents’ free-exercise rights

when they “substantially interfere with the religious

development” of their children or “pose ‘a very real

threat of undermining’ the religious beliefs and practices the parent[s] wish[] to instill in the[ir]

child[ren].” Id. at 556 (quoting Wisconsin v. Yoder,

406 U.S. 205, 218 (1972)). Notwithstanding these

precedents, the en banc Fifth Circuit declared that

Stone is no longer good law and upheld a Texas statute mandating the display of a state-selected version

of the Ten Commandments in every public-school

classroom.

The questions presented are:

1. Whether the Establishment Clause forbids a

state from mandating the permanent, conspicuous display of a government-selected version

of the Ten Commandments in every publicschool classroom.

2. Whether permanently displaying the Ten Commandments in every public-school classroom

interferes with parents’ Free Exercise Clause

right to direct their children’s religious education and burdens children’s religious freedom.

PARTIES TO THE PROCEEDING

The Nathan Petitioners are Mara Nathan, Rabbi,

on behalf of herself and on behalf of her minor child,

M.N.; Virginia Galaviz Eisenberg and Ron Eisenberg,

on behalf of themselves and on behalf of their minor

child, R.E.; Seth Ettinger, Cantor, and Sarah

Ettinger, on behalf of themselves and on behalf of

their minor child, R.E.; Elizabeth Lemaster, on behalf

of herself and on behalf of her minor children, K.L. &

L.L.; Carah Helwig, on behalf of herself and on behalf

of her minor children, J.P. & T.P.; Alyssa Martin and

Cody Barker, on behalf of themselves and on behalf of

their minor child, H.B.M.; Lauren Erwin, on behalf of

herself and on behalf of her minor child, M.E.; Rebekah Lowe and Theodore Lowe, on behalf of themselves and on behalf of their minor children, E.R.L. &

E.M.L.; Marissa Norden and Wiley Norden, on behalf

of themselves and on behalf of their minor children,

E.N. & A.N.; Joshua Fixler, Rabbi, on behalf of himself and on behalf of his minor children, D.F., E.F., &

F.F.; Cynthia Mood, Reverend, on behalf of herself

and on behalf of her minor children, L.M. & C.M.;

Cheryl Rebecca Smith, on behalf of herself and on behalf of her minor child, L.P.J.; Arvind Chandrakantan, on behalf of himself and on behalf of his

minor children, V.C., M.C., & A.C.; Allison Fitzpatrick, on behalf of herself and on behalf of her minor

children, C.F. & H.F.; and Mara Richards Bim, on behalf of herself and on behalf of her minor child, H.B.

iii

The Nathan Respondents are Alamo Heights Independent School District; North East Independent

School District; Lackland Independent School District; Northside Independent School District; Lake

Travis Independent School District; Dripping Springs

Independent School District; Fort Bend Independent

School District; Cypress Fairbanks Independent

School District; and Plano Independent School District.

The Cribbs Ringer Petitioners are Roxanne Cribbs

Ringer, on behalf of herself and on behalf of her minor

child, E.R.; John Fuechsel, on behalf of himself and on

behalf of his minor children, E.F. and M.F.; Amber

Rainey, on behalf of herself and on behalf of her minor

child, K.R.; Lenee Bien-Willner, on behalf of herself

and on behalf of her minor children, E.B.W., P.B.W.,

and A.B.W.; Jeremy Halland, on behalf of himself and

on behalf of his minor children, N.H. and S.H.; Kimberly Inmon, on behalf of herself and on behalf of her

minor child, T.L.; Kristin Klade, Reverend, and John

Klade, on behalf of themselves and on behalf of their

minor children, F.K. and W.K.; Michelle Lewis, on behalf of herself and on behalf of her minor child, C.L.;

Nichole Manning, on behalf of herself and on behalf of

her minor children, A.M. and D.J.; Michael Olson, on

behalf of himself and on behalf of his minor child,

R.O.; Shannon Olson, on behalf of herself and on behalf of her minor child, R.D.; Patricia Ruiz, on behalf

of herself and on behalf of her minor child, J.R.; Daniel Sullivan and Sinjita Sullivan, on behalf of

themselves and on behalf of their minor children, R.S.

and N.S.; Marneigh Urban, on behalf of herself and

on behalf of her minor child, E.S.; Whitney Lawrence,

on behalf of herself and on behalf of her minor children, J.L. and L.L.; and Maribel Villarreal, on behalf

of herself and on behalf of her minor children, E.G.

and E.R.G.

The Cribbs Ringer Respondents are Comal Independent School District; Georgetown Independent

School District; Conroe Independent School District;

Flour Bluff Independent School District; Fort Worth

Independent School District; McKinney Independent

School District; Frisco Independent School District;

Northwest Independent School District; Azle Independent School District; Rockwall Independent

School District; Lovejoy Independent School District;

and Mansfield Independent School District.

None of the parties to the proceeding is a publicly

traded corporation, and no party has a stock ticker

symbol.

RELATED PROCEEDINGS

Nathan v. Alamo Heights Indep. Sch. Dist., No. 2550695, U.S. Court of Appeals for the Fifth Circuit.

Judgment entered April 21, 2026.

Nathan v. Alamo Heights Indep. Sch. Dist., No. 25-cv00756, U.S. District Court for the Western District

of Texas. Order entered August 20, 2025.

Cribbs Ringer v. Comal Indep. Sch. Dist., No. 2551045, U.S. Court of Appeals for the Fifth Circuit.

Judgment entered May 29, 2026.

Cribbs Ringer v. Comal Indep. Sch. Dist., No. 25-cv1181, U.S. District Court for the Western District of

Texas. Order entered November 18, 2025.

TABLE OF CONTENTS

Page

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

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

RELATED PROCEEDINGS ...................................... v

TABLE OF CONTENTS ........................................... vi

TABLE OF APPENDICES ..................................... viii

TABLE OF AUTHORITIES ..................................... ix

INTRODUCTION ...................................................... 1

OPINIONS BELOW ................................................... 4

JURISDICTION ......................................................... 4

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED................................... 5

STATEMENT OF THE CASE ................................... 5

I. Enactment of S.B. 10 ............................................ 5

II. Petitioners’ Challenges ......................................... 9

A. Nathan ............................................................. 9

B. Cribbs Ringer ................................................. 17

REASONS FOR GRANTING THE PETITION ...... 21

I. The Decisions Below Conflict with Stone and

this Court’s Other Establishment Clause

Precedents. . ........................................................ 21

A. This Court Should Either Summarily

Reverse or Grant, Vacate, and Remand

These Cases Because Stone Remains Good

Law................................................................. 21

vii

B. Nathan Has Deepened Confusion About

Kennedy’s Reach, Unsettling

Establishment Clause Law. . ........................ 25

C. The Court of Appeals Was Also Wrong on

the Merits Because It Flouted this Court’s

Other Establishment Clause Precedents. . .. 27

II. The Decisions Below Conflict with Mahmoud

and this Court’s Free Exercise Clause

Jurisprudence. .................................................... 31

A. The Decisions Below Contravene

Precedents of this Court that Protect

Families’ Free-Exercise Rights in Public

Schools. .......................................................... 32

B. The Decisions Below Create Confusion

Regarding the Reach of Mahmoud and the

Free Exercise Clause. . .................................. 37

III.The Petition Presents a Pressing and

Recurring Issue of Nationwide Importance. ...... 38

IV. These Cases are Ideal Vehicles to Resolve the

Questions Presented. . ........................................ 40

CONCLUSION ......................................................... 41

viii

TABLE OF APPENDICES

Page

APPENDIX A — ORDER OF THE UNITED

STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT, FILED MAY 29, 2026 ............. 1a

APPENDIX B — ORDER OF THE UNITED

STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF TEXAS, SAN

ANTONIO DIVISION, FILED NOVEMBER 18,

2025 ....................................................................... 4a

APPENDIX C — OPINION OF THE UNITED

STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT, FILED APRIL 21, 2026 ........ 22a

APPENDIX D — ORDER OF THE UNITED

STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF TEXAS, SAN

ANTONIO DIVISION, FILED AUGUST 20,

2025 ................................................................... 169a

APPENDIX E — PROVISIONS INVOLVED .... 251a

Tex. Educ. Code Ann. § 1.0041 (“S.B. 10”) ....... 251a

TABLE OF AUTHORITIES

Page

Cases

Agostini v. Felton,

521 U.S. 203 (1997) ............................................... 22

Carmell v. Texas,

529 U.S. 513 (2000) ............................................... 22

Carson v. Makin,

596 U.S. 767 (2022) ............................................... 36

Cath. Charities Bureau, Inc. v. Wis. Lab. &

Indus. Rev. Comm’n,

605 U.S. 238 (2025) ..........................................26, 31

Childs v. Webster,

168 F.4th 1020 (7th Cir. 2026) ............................. 26

Cribbs Ringer v. Comal Indep. Sch. Dist.,

809 F. Supp. 3d 672 (W.D. Tex. 2025)

………...............................................................v, 4, 20

Cribbs Ringer v. Comal Indep. Sch. Dist.,

No. 25-51045 (5th Cir. May 29, 2026) (per curiam)

.................................................. v, 4, 5, 17, 20, 38, 40

Cutter v. Wilkinson,

544 U.S. 709 (2005) ............................................... 26

Edwards v. Aguillard,

482 U.S. 578 (1987) ........................24, 27, 29, 38, 40

Engel v. Vitale,

370 U.S. 421 (1962) ................................... 16, 24, 29

Epperson v. Arkansas,

393 U.S. 97 (1968) ................................................. 31

Firewalker-Fields v. Lee,

58 F.4th 104 (4th Cir. 2023) ................................. 25

Hilsenrath v. Sch. Dist. of the Chathams,

136 F.4th 484 (3d Cir. 2025), cert. denied sub

nom. Hilsenrath v. Chathams Sch. Dist. Bd. of

Educ., 146 S. Ct. 885 (2025) .......................... 25, 26

Hohn v. United States,

524 U.S. 236 (1998) ............................................... 23

Hosanna-Tabor Evangelical Lutheran Church &

Sch. v. EEOC,

565 U.S. 171 (2012) ............................................... 35

Ill. ex rel. McCollum v. Bd. of Educ.,

333 U.S. 203 (1948) ......................................... 29, 38

Jusino v. Fed’n of Cath. Tchrs., Inc.,

54 F.4th 95 (2d Cir. 2022) ..................................... 26

Kennedy v. Bremerton Sch. Dist.,

597 U.S. 507 (2022)………….......……………..1, 2, 4,

14, 16, 21, 22, 25, 26, 27, 29

Larson v. Valente,

456 U.S. 228 (1982) ................................... 26, 27, 31

Lee v. Weisman,

505 U.S. 577 (1992) ..........................1, 16, 29, 30, 35

Lemon v. Kurtzman,

403 U.S. 602 (1971) ............ 14, 16, 21, 23, 24, 26, 27

Lyng v. Nw. Indian Cemetery Protective Ass’n,

485 U.S. 439 (1988) ............................................... 36

Mahmoud v. Taylor,

606 U.S. 522 (2025)……………..i, 1, 2, 4, 15, 16, 27,

29, 31, 32, 33, 34, 35, 36, 37, 41

Mallory v. Norfolk S. Ry. Co.,

600 U.S. 122 (2023) ........................................... 2, 22

Miller v. McDonald,

146 S. Ct. 879 (2025) ............................................. 37

Mirabelli v. Bonta,

607 U.S. 492 (2026) (per curiam) ................... 32, 37

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

173 F.4th 576 (5th Cir. 2026) (en banc)………. v, 3,

4, 5, 9, 14, 18, 20, 21, 25, 26, 34, 38, 40

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

795 F. Supp. 3d 910 (W.D. Tex. 2025) ...........v, 4, 14

Pierce v. Soc’y of Sisters,

268 U.S. 510 (1925) ............................................... 33

Ramos v. Louisiana,

590 U.S. 83 (2020) ................................................. 22

Roake v. Brumley,

170 F.4th 292 (5th Cir. 2026) (en banc) ............... 39

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

490 U.S. 477 (1989) ................................... 22, 23, 26

Santa Fe Indep. Sch. Dist. v. Doe,

530 U.S. 290 (2000) ..............................26, 29, 30, 31

Sch. Dist. of Abington Twp. v. Schempp,

374 U.S. 203 (1963) ..............................16, 24, 29, 36

Stinson v. Fayetteville Sch. Dist. No. 1,

824 F. Supp. 3d 792 (W.D. Ark. 2026).................. 38

Stone v. Graham,

449 U.S. 39 (1980) (per curiam)..……….. i, 2, 4, 15,

16, 17, 21, 22, 23, 24, 25, 27, 40, 41

xii

Thompson v. Hebdon,

589 U.S. 1 (2019) ................................................... 23

Van Orden v. Perry,

545 U.S. 677 (2005) ............................................... 24

Wisconsin v. Yoder,

406 U.S. 205 (1972) .................................. i, 1, 32, 34

Youngblood v. West Virginia,

547 U.S. 867 (2006) ............................................... 23

Zorach v. Clauson,

343 U.S. 306 (1952) ......................................... 29, 31

Statutes

28 U.S.C. § 1254(1)..................................................... 5

H.B. 47, 114th Gen. Assemb., Reg. Sess.

(Tenn. 2026) (enacted) ......................................... 39

S.B. 99, 2026 Leg., Reg. Sess.

(Ala. 2026) (enacted) ............................................ 39

Tex. Educ. Code Ann. § 1.0041

(“S.B. 10”) ........................................1, 5, 6, 7, 14, 33

Tex. Educ. Code Ann. § 25.085 .................................. 7

Tex. Educ. Code Ann. § 25.093 .................................. 7

Tex. Fam. Code § 65.003(b)........................................ 7

Tex. Gov’t Code § 21.002 ............................................ 7

Other Authorities

Americans United for Separation of Church and

State, Ten Commandments Displays in Public

Schools Bill Tracker,

https://www.quorum.us/spreadsheet/external/f

WmWADuZLBwTrnGsQMQV/ ............................ 39

xiii

Christopher C. Lund, Soft Establishment,

Religious Education, and Stone v. Graham,

64 J. Cath. Legal Stud. 51 (2026) ......................... 28

James Madison, Memorial and Remonstrance

Against Religious Assessments, Founders’

Constitution, vol. 5, doc. 43 .................................. 28

Rules

Supreme Court Rule 12.4 .......................................... 4

Constitutional Provisions

U.S. Const. amend. I .................................................. 5

U.S. Const. art. III, § 1................................... 3, 22, 40

INTRODUCTION

When it comes to public schools, this Court has

long recognized two religious-freedom principles.

First, there are “heightened concerns with protecting

freedom of conscience from subtle coercive pressure in

the elementary and secondary public schools.” Lee v.

Weisman, 505 U.S. 577, 592 (1992). For that reason,

it is “problematically coercive” for public schools to

impose religious messages on a “captive audience” of

students. Kennedy v. Bremerton Sch. Dist., 597 U.S.

507, 541–42 (2022). Second, parents’ free-exercise

right to direct their children’s religious education is

burdened when public-school instruction “substantially interfere[s] with the religious development” of

their children or “pose[s] ‘a very real threat of undermining’ the religious beliefs and practices the parent[s] wish[] to instill in the[ir] child[ren].” Mahmoud

v. Taylor, 606 U.S. 522, 556 (2025) (quoting Wisconsin

v. Yoder, 406 U.S. 205, 218 (1972)).

Texas Senate Bill 10, 89th Leg., R.S., ch. 955 (codified at Tex. Educ. Code Ann. § 1.0041) (“S.B. 10” or

the “Act”), contravenes these basic First Amendment

tenets. The statute imposes on public-school children,

for nearly every hour they are in school, the State’s

favored scripture: the Ten Commandments, drawn

from the King James Bible.

Petitioners are more than two dozen families of diverse faiths and beliefs—including Baha’ism, Christianity, Hinduism, Judaism, Unitarian Universalism,

and nonreligious traditions—whose children attend

Texas public schools. They challenge the constitutionality of S.B. 10 under both the Establishment and

Free Exercise Clauses of the First Amendment.

The Court should grant the petition because the

court of appeals, in upholding S.B. 10, flouted this

Court’s binding precedents and gutted the religiousfreedom rights of public-school children and parents.

First, the court of appeals purported to unilaterally overrule this Court’s decision in Stone v. Graham,

449 U.S. 39 (1980) (per curiam), which struck down a

nearly identical Kentucky statute almost fifty years

ago. Stone followed from prior precedents of this

Court and was reinforced by later ones. The court of

appeals believes that Stone was somehow overruled

by Kennedy, even though Kennedy does not mention

Stone. But only this Court can overrule its own decisions, and it does not do so silently. See, e.g., Mallory

v. Norfolk S. Ry. Co., 600 U.S. 122, 136 (2023). Moreover, Stone rests on doctrinal grounds that were left

untouched by Kennedy. S.B. 10 and the decisions below are contrary to Stone and those other precedents.

Second, this Court should grant the petition because the decisions below contravene this Court’s recent ruling in Mahmoud and destabilize free-exercise

law. If the permanent, unavoidable imposition of biblical scripture in public-school classrooms does not interfere with, or threaten to undermine, parents’

ability to direct their children’s religious education

and to instill particular religious beliefs and practices,

it is difficult to imagine what would.

The Court should also grant the petition because

these cases present issues of exceptional national importance. In the last two years, legislatures in two

dozen states have either enacted or considered proposed laws regarding the display of the Ten Commandments in public schools, with more sure to follow

absent this Court’s intervention. But the implications

of the Fifth Circuit’s Nathan ruling extend much further. According to the court of appeals, it “would be a

shock to discover that the Establishment Clause is

implicated merely by the government’s use of religious language, imagery, or symbols.” Pet.App.70a.

Left standing, this reasoning could empower government officials to flood public-school classrooms with

an endless array of religious rules, instructions, and

mandates.

These cases are also ideal vehicles for resolving

the merits of the constitutional questions presented.

The Fifth Circuit ruled that no Article III barriers exist, and there is a robust record below that includes

Petitioners’ testimony as well as live expert testimony

that was subject to cross examination by Petitioners

and the State.

Because the court of appeals egregiously violated

vertical stare decisis, this Court should summarily reverse the judgments below, or grant the petition, vacate the judgments, and remand for application of

Stone and reconsideration of Petitioners’ Free Exercise Clause claims under Mahmoud. Alternatively,

the Court should grant plenary review to resolve the

constitutional questions presented; clarify any confusion as to the applicability of Stone, Kennedy, and

Mahmoud; and, ultimately, reverse the Fifth Circuit’s

erroneous decisions.

OPINIONS BELOW

The Fifth Circuit’s en banc opinion vacating the

district court’s preliminary injunction in Nathan

(Pet.App.22a) is reported at 173 F.4th 576 (5th Cir.

2026). The district court’s opinion granting Petitioners’

motion

for

preliminary

injunction

(Pet.App.169a) is reported at 795 F. Supp. 3d 910

(W.D. Tex. 2025).

The Fifth Circuit’s decision granting summary reversal of the district court’s preliminary injunction in

Cribbs Ringer (Pet.App.1a) is unpublished. The district court’s opinion granting Petitioners’ motion for a

preliminary injunction (Pet.App.4a) is reported at 809

F. Supp. 3d 672 (W.D. Tex. 2025).

JURISDICTION

Petitioners file this joint petition pursuant to Supreme Court Rule 12.4 because both cases present

similar constitutional questions regarding the same

statute. This Court has jurisdiction as to both judgments under 28 U.S.C. § 1254(1).

The Fifth Circuit, sitting en banc, issued its opinion and judgment in Nathan on April 21, 2026.

Pet.App.22a. On July 7, 2026, Justice Alito extended

the time to file a petition for a writ of certiorari in Nathan until August 19, 2026. See No. 26A15 (U.S. July

7, 2026).

The Fifth Circuit granted summary reversal in

Cribbs Ringer on May 29, 2026. Pet.App.1a. The petition for a writ of certiorari is due by August 27, 2026.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

These cases involve the First Amendment to the

United States Constitution, which provides: “Congress shall make no law respecting an establishment

of religion, or prohibiting the free exercise thereof[.]”

U.S. Const. amend. I. S.B. 10 is reproduced in full at

Pet.App.251a–254a.

STATEMENT OF THE CASE

I. Enactment of S.B. 10

On June 20, 2025, Texas Governor Greg Abbott

signed S.B. 10 into law. The statute requires every elementary and secondary public school in the state to

“display in a conspicuous place in each classroom of

the school a durable poster or framed copy of the Ten

Commandments.” Tex. Educ. Code Ann. § 1.0041(a);

Pet.App.251a. Each display must “be at least 16

inches wide and 20 inches tall,” with the Commandments appearing in a “size and typeface that is legible

to a person with average vision from anywhere in the

classroom.” Tex. Educ. Code Ann. §§ 1.0041(b)(1)–(2);

Pet.App.251a–252a.

The only text that may appear on the displays is

the following version of the Ten Commandments selected by lawmakers, Tex. Educ. Code Ann.

§ 1.0041(c); Pet.App.252a:

The Ten Commandments

I AM the LORD thy God.

Thou shalt have no other gods before me.

Thou shalt not make to thyself any graven images.

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

vain.

Remember the Sabbath day, to keep it holy.

Honor thy father and thy mother, that thy days may

be long upon the land which the Lord thy God giveth

thee.

Thou shalt not kill.

Thou shalt not commit adultery.

Thou shalt not steal.

Thou shalt not bear false witness against thy

neighbor.

Thou shalt not covet thy neighbor’s house.

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

manservant, nor his maidservant, nor his cattle, nor

anything that is thy neighbor’s.

Under S.B. 10, public schools must accept and post

compliant, donated displays, and may also “purchase

posters or copies . . . using district funds.” Tex. Educ.

Code Ann. § 1.0041(e); Pet.App.253a. The displays are

permanent and year-round. From kindergarten

through twelfth grade, this scripture will confront

students in every classroom, regardless of the subject

matter taught.

Parent-petitioners, like all other Texas parents,

are required to send their children to school. Under

Texas law, minor children must “attend school each

school day for the entire period” that instructional

programming is provided. Tex. Educ. Code Ann.

§ 25.085(a). When students exceed the number of allowable unexcused absences from school, they and

their parents may be subject to educational and legal

penalties, including truancy prosecutions. See Tex.

Fam. Code § 65.003(b); Tex. Educ. Code Ann.

§ 25.093(a); Pet.App.123a. Other civil or criminal penalties may also apply. Tex. Educ. Code Ann.

§§ 25.093(c), (f); Tex. Gov’t Code § 21.002 (authorizing

a fine or confinement in jail for contempt of court).

Lawmakers have affirmed that S.B. 10 is designed

to inculcate the State’s preferred religious beliefs and

practices in Texas’s schoolchildren. Texas Senator

Phil King, a primary sponsor of S.B. 10, explained:

“[W]e want every kid . . . every day, in every classroom

they sit in to look on the wall and read . . . those words

[] that God says because we want them to understand

how important [] those statements of God, those rules

of God[,] are that they see them in their classroom

every single day of their public education.” Nathan

ROA.78–79; Pet.App.230a. Lieutenant Governor Dan

Patrick, who presides over the Texas Senate, stated

that, because of S.B. 10, students “[i]n every classroom in Texas . . . are going to see the Ten Commandments, and they are going to know about God.”

Nathan ROA.78; Pet.App.229a–230a.

Thanking Representative Candy Noble, S.B. 10’s

primary House sponsor, for introducing the bill, Representative Harold Dutton, Jr. announced during the

floor debate: “I appreciate her bringing this to us because I think, again, to teach our children to better

their behavior and that there is something in all of us

that God has placed in each and every one of us. And

the only way to get that out is to follow His commands. And His commands, the Ten Commandments

set that out. And the best way to teach children is to

find a means in which they are willing to learn.” Nathan ROA.79; Pet.App.231a.

During a legislative hearing, Senator Donna

Campbell, a primary author of S.B. 10, also emphasized the importance of introducing schoolchildren to

scripture: “God tells us in Joshua 1:9 to be strong and

courageous. Don’t be afraid. Don’t be discouraged,

because the Lord, thy God is with us throughout our

life. There is an afterlife. There is eternal life. And if

we don’t expose—or introduce is a better word—our

children and others to that, when they die, they had

one birth, two deaths, because they will know nothing

about the afterlife, the eternity with God. But exposing them or introducing them to Ten Commandments

[and] prayer, it asks other questions, and they then

have a choice in their future. Two births, and one

death. And this is what we’re doing.” Nathan

ROA.79–80; Pet.App.231a.

II. Petitioners’ Challenges

Petitioners are parents and their children who attend Texas public schools. Their families practice a

range of faiths, including Baha’ism, various denominations of Christianity, Hinduism, Judaism, and Unitarian Universalism, and some are nonreligious.

Several Petitioner-parents are ordained ministers,

pastors, or rabbis. Pet.App.211a–228a.

Petitioners brought two lawsuits to challenge S.B.

10 and vindicate their First Amendment rights.

A. Nathan

On July 2, 2025, the Nathan Petitioners filed suit

against their respective school districts, challenging

S.B. 10 under the First Amendment’s Establishment

and Free Exercise Clauses. Pet.App.169a, 202a. They

moved to preliminarily enjoin S.B. 10, and Respondents moved to dismiss. Pet.App.202a.

In support of their preliminary-injunction motion,

each Petitioner-parent submitted a declaration explaining how S.B. 10’s permanent, unavoidable displays will pressure their children to observe, meditate

on, venerate, and follow the State’s favored scripture,

and to suppress their own religious or nonreligious

values and beliefs at school. Moreover, Petitioner-parents testified that this religious instruction will substantially interfere with their ability to guide their

children’s religious education and undermine their

teachings on religious matters in myriad ways: S.B.

10’s displays will impose religious doctrine in a manner that conflicts with the families’ religious beliefs,

values, and practices taught at home; sow religious

confusion and exclusion among the children; and force

parents to attempt to counter the State’s religious instruction rather than approaching their children’s religious or nonreligious development in accordance

with their own beliefs. Pet.App.211a–212a.

For example, Petitioner Mara Richards Bim, a

now-ordained pastor who is raising her child, H.B., in

the Baptist faith, explained in her declaration that

her “family and her Baptist church do not emphasize

the Ten Commandments to children at H.B.’s stage in

life and instead emphasize the Commands of Jesus: to

love God and to love our neighbors just as we love ourselves.” Pet.App.227a; Nathan ROA.2082. Reverend

Bim believes “it is critical that this text [the Ten Commandments] be presented to H.B. by me or through

my family’s church, at the proper time, in the correct

context, and in the Biblical translation used by our

family and church.” Nathan ROA.2082. S.B. 10 instead “will impose the state’s translation (drawn from

the King James Version of the Bible) on H.B. every

day, in every classroom.” Id. As a result, Reverend

Bim stated, the displays will create confusion that

could cause “H.B. to question whether the religious

teachings H.B. is receiving from me and our faith

community are ‘wrong’ because H.B. has learned

something different at school” and pressure “H.B. to

abandon our [Baptist] faith tradition altogether.” Id.

Petitioners Cantor Seth Ettinger and Sarah

Ettinger are raising their child, R.E., in the Jewish

faith. Nathan ROA.2005–15. In his declaration, Cantor Ettinger explained that “[t]he responsibility to

guide R.E. in the development of R.E.’s Jewish faith,

including R.E.’s understanding of the text and meaning of the Ten Commandments, is a vital part of my

religious exercise and my role as a parent and faith

leader.” Id. at 2009. But while the Ettingers “believe

that the Ten Commandments are a sacred Jewish

text, the version required by S.B. 10 does not align

with our family’s Jewish belief and tradition and what

we teach R.E.” Id. at 2006. According to Cantor

Ettinger, S.B. 10’s version of the Ten Commandments

has been made “Christian-centric” in “myriad” ways.

Id. at 2008. It will, he stated, confuse R.E. by pressuring him to accept that the “Christian-centric Commandments, as depicted in the displays, are rules that

R.E. must follow.” Id. He also noted that, as a

minority-faith student at school, R.E. has already

faced proselytizing by peers and pressure to take part

in celebrations around Christian holidays, and S.B.

10’s display of Christian scripture in every classroom

will only make R.E. feel even more “isolated at school

and pressured to suppress expression of R.E.’s Jewish

identity.” Id. at 2009.

Petitioners established that S.B. 10 also harms

those who follow religions that are not biblically

based. Petitioner Dr. Arvind Chandrakantan is a lifelong Hindu raising his minor children, A.C., M.C., and

V.C., in the Hindu faith. Pet.App.225a; Nathan

ROA.2073–78. As stated in his declaration, his “family does not subscribe to the religious dictates of the

Ten Commandments.” Id. In particular, the first four

commandments are “at odds” with the Hindu teachings that he imparts to his children. Nathan

ROA.2074. By conveying to the children that “certain

aspects of Hindu faith and worship are inherently

wrong,” and that “Christianity is the only acceptable

religion in school,” Dr. Chandrakantan explained, the

displays will pressure his children to “religiously assimilate” or force them to defend the family’s “Hindu

beliefs and practices” because they “differ from the

Christian beliefs and practices” imposed through S.B.

10. Id. at 2075.

Petitioner-parents’ objections are consistent with

the record below, which demonstrated that the text of

the Ten Commandments mandated by S.B. 10 is

drawn from the King James Bible and is associated

with certain Protestant denominations. Many Catholics, Jews, and other Protestants number, organize, or

translate the Ten Commandments differently. Nathan ROA.315. For instance, many Jews regard the

scriptural recognition that “God freed [the Israelites]

from slavery in Egypt” as a crucial part of the Commandments. Id. at 315–16. S.B. 10’s mandatory text

erases this. S.B. 10’s mandatory text also directs

“[t]hou shalt not kill,” whereas the verse followed by

most Jews prohibits “murder.” Id. at 316. Moreover,

most Catholic versions of the Ten Commandments,

when abridged, do not include the language prohibiting “graven images[,]” but instead prohibit making

idols, as the former could conflict with certain Catholic practices, including “the veneration of icons.” Id. at

316–17. As illustrated by the record, for many Jews

and Catholics, these textual differences reflect deep

theological differences as to the Ten Commandments’

meaning and adherents’ religious practices. Id. at

314–17.

The record also demonstrated that the biblical text

required by S.B. 10 is exclusionary of other faith traditions. Many religions—Buddhism, Hinduism, and

Sikhism, for example—are not biblically based and do

not consider the Ten Commandments to be part of

their faith system. Id. at 314. In some instances, the

Commandments directly conflict with specific religious tenets, as Dr. Chandrakantan detailed in discussing his Hindu faith. Pet.App.225a. And families

that do not adhere to any organized faith may not recognize any God and certainly not “the LORD thy God.”

Tex. Educ. Code Ann. §§ 1.0041(a), (b)(1)–(2) (emphasis added); see also Pet.App.217a–218a; Nathan ROA.2020.

After a two-day evidentiary hearing that included

the unopposed submission of Petitioner-parents’ declaration testimony, as well as submission of both

sides’ expert reports and live expert testimony and

cross-examination, Pet.App.202a, 238a–239a, the district court held that the Nathan Petitioners had

demonstrated standing and ripeness and that S.B. 10

likely violates both the Establishment and Free Exercise Clauses. Pet.App.209a–248a. The court preliminarily enjoined the Nathan Respondents from

enforcing S.B. 10. Pet.App.250a.

Nathan Respondents appealed, and the Fifth Circuit granted their motion to hear the case initially en

banc. Pet.App.31a. In a 9–8 decision, the Fifth Circuit

held that S.B. 10 does not violate either of the Religion Clauses. Pet.App.28a, 87a.

After determining that Petitioners’ First Amendment claims were justiciable, the majority opinion,

authored by Judge Duncan, held that Stone does not

control. Pet.App.40a–49a. The majority’s view was

that Stone rested on Lemon v. Kurtzman, 403 U.S. 602

(1971), which Kennedy abrogated, and that Stone is

therefore no longer good law. Pet.App.41a. The court

then purported to apply Kennedy’s instruction to

interpret the challenged law “by reference to historical practices and understandings[.]” Pet.App.49a.

Concluding that S.B. 10 does not resemble a “founding-era establishment” and is not religiously coercive

because it “requires only that the Commandments be

displayed on the classroom wall,” the court then held

that the statute does not violate the Establishment

Clause. Pet.App.70a–72a. The court also declared

that it “would be a shock to discover that the Establishment Clause is implicated merely by the government’s use of religious language, imagery, or

symbols.” Pet.App.70a. And it concluded that S.B. 10

does not offend denominational neutrality because

that “principle has no application to government use

of religious language or symbolism.” Pet.App.74a.

The court of appeals also held that S.B. 10 does not

violate the Free Exercise Clause, reasoning that the

statute results only in “mere exposure” to the Ten

Commandments. It reasoned that S.B. 10 is “nothing

like” the “instruction” involved in Mahmoud and further suggested that S.B. 10 imposes “[n]o religious

curriculum” and “no theistic lesson plans,” requiring

only “a poster on a classroom wall.” Pet.App.84a.

Judges Oldham (joined by Judge Willett) and Ho each

wrote a concurring opinion. Pet.App.88a–98a.

Judge Ramirez, joined by six other judges, dissented. She explained that “[t]he Supreme Court long

ago held that a statute nearly identical to S.B. 10 violates the Establishment Clause,” and that the Court

“has long emphasized ‘the heightened concerns with

protecting freedom of conscience from subtle coercive

pressure’ in public schools.” Pet.App.99a (quoting Lee,

505 U.S. at 592). As to the Free Exercise Clause, she

reasoned that “the displays required by S.B. 10

threaten to ‘undermin[e] the religious beliefs that

parents wish to instill in their children’ and ‘pressure’

students ‘to conform[.]’” Pet.App.131a (quoting

Mahmoud, 606 U.S. at 553–54). She thus determined

that “legislation requiring the permanent fixture of

religious rules in public-school classrooms, with no

‘educational function,’ violates these most basic First

Amendment principles,” Pet.App.99a (quoting Stone,

449 U.S. at 42), and does not satisfy strict scrutiny.

Pet.App.131a (citing Mahmoud, 606 U.S. at 553–54).

Judge Southwick wrote a separate dissent, joined

by five other judges, emphasizing the majority’s deviation from binding Supreme Court precedent. He explained that his “principal objection to the majority

opinion is that it finds a recent Supreme Court precedent [(Kennedy)] to be more sweeping in its discard of

prior precedent than” it was. Pet.App.134a. He added

that “[t]he mere fact that th[is] Court cited [in Stone]

the broader [Lemon] test to apply the narrower [coercion] principle does not doom Stone” as “[t]he Court’s

citation to Lemon was rote—the reasoning for why the

Kentucky law violated the Establishment Clause

rested entirely on Schempp and Engel[.]”

Pet.App.143a. Judge Southwick further reasoned that

“[a] broadcast prayer for which no active participation

is required is comparable on the coercion axis from

posted religious commandments.” Pet.App.148a.

Judge Higginson also wrote a separate dissent,

joined by four other judges, to emphasize that “[t]he

Framers intended disestablishment of religion, above

all[,] to prevent large religious sects from using political power to impose their religion on others.”

Pet.App.153a. He criticized the majority for “def[ying]

foundational First Amendment concepts, ignor[ing]

the harms students will face, and usurp[ing] parents’

rights to determine the religious beliefs they wish to

instill in their own children.” Id. In doing so, he wrote,

the Fifth Circuit “accommodate[d] [Texas’s] unconstitutional request, supplanting decades of Supreme

Court precedent merely because of a single decision

the majority deem[ed] outdated.” Id.

Writing separately, Judge Haynes agreed with

Judge Ramirez that Stone “clearly makes S.B. 10 an

unconstitutional statute,” such that she would

“simply stop there.” Pet.App.152a. She explained:

“We must follow the Supreme Court[.]” Id.

B. Cribbs Ringer

On September 22, 2025, the Cribbs Ringer Petitioners filed suit against their respective school districts, challenging the legality of S.B. 10 under the

First Amendment’s Establishment and Free Exercise

Clauses. Pet.App.6a. At the time the complaint was

filed, Ten Commandments displays were already

posted in classrooms in several defendant school

districts, and all of the defendant school districts had

either received donations of displays or had donors

ready to provide displays. Pet.App.5a–6a.

As in Nathan, each Petitioner-parent submitted a

declaration articulating the harms that S.B. 10 will

impose on them and their children. For example, Petitioners Reverend Kristin Klade and John Klade are

raising their children, F.K. and W.K., in a Christian

denomination—the Lutheran faith, in which Reverend Klade is ordained. Reverend Klade detailed the

family’s considered approach to the children’s religious upbringing: “As a pastor,” she explained, “I believe that matters of theology must be taught within

the faith community and at home, not in public

school.” Decl. of Rev. Kristin Klade ¶¶ 3, 7, in App. to

Pls.’ Mot. for TRO and/or Prelim. Inj. at 28–31, Cribbs

Ringer v. Comal Indep. Sch. Dist., No. 5:25-cv-01181

(W.D. Tex. Sept. 23, 2025), ECF No. 4-4. Although

Reverend Klade follows the Ten Commandments personally, she testified that “the version required by

S.B. 10 does not align with the Lutheran values that

I am teaching my children”; she teaches the Commandments “through the lens of the gospel” and “not

[as] a set of rules that one must follow to be loved by

God.” Id. ¶¶ 8, 10. As a result, she stated, S.B. 10’s

scriptural displays will pressure her children to adopt

religious doctrine and values that are “different from

the doctrine I teach my family” and will “interfere

with and substantially burden” an “essential aspect of

my religious exercise as a parent and as a pastor”—

the “responsibility to guide my children in the development of their Christian faith and religious education.” Id. ¶¶ 10, 12.

Petitioner Lenee Bien-Willner is Jewish and is

raising her children, E.B.W., P.B.W., and A.B.W., in

the Jewish tradition. In her declaration, she confirmed that the Ten Commandments had already

been posted in her children’s classrooms, where the

children are subjected to them “for nearly every hour

of the school day.” Decl. of Lenee Bien-Willner ¶¶ 2,

3, 5, in App. to Pls.’ Mot. for TRO and/or Prelim. Inj.

at 14–18, Cribbs Ringer, No. 5:25-cv-01181, ECF No.

4-4. Bien-Willner explained that she opposes S.B. 10

because it imposes on her children “a Christian interpretation of the Commandments that is exclusionary

to non-Christians, even to Jews who believe in the

Ten Commandments.” Id. ¶ 8. As Bien-Willner testified, she fears that S.B. 10’s displays will cause “increased

harassment,

ostracization,

and

proselytization” and will discourage her children, who

have already faced antisemitism at school, from expressing their Jewish faith. Id. ¶ 10.

Petitioner John Fuechsel is Christian. In his declaration, he detailed his belief that “faith is most powerful when individuals come to embrace a religion on

their own accord.” Decl. of John Fuechsel ¶ 3, in App.

to Pls.’ Mot. for TRO and/or Prelim. Inj. at 5–9, Cribbs

Ringer, No. 5:25-cv-01181, ECF No. 4-4. To provide

his children, E.F. and M.F., with “space to develop

their own views and beliefs about religion,” the family

does “not regularly observe or adhere to any religious

text, practice, or ritual.” Id. ¶ 3. And, Fuechsel testified, in sharing his Christian faith with his children,

he has decided against having them read the Ten

Commandments “because the text includes religious

directives that I do not want my children to feel bound

by.” Id. ¶ 7. He further explained that S.B. 10 interferes with these decisions “[b]ecause I teach my children to listen to the authority figures at school and

follow the school’s rules, [and] they will believe that it

is mandatory to follow and believe in the Ten Commandments or risk getting in trouble or being ‘wrong’

and marginalized from peers.” Id. ¶ 8.

At an evidentiary hearing, the Petitioner-plaintiffs’ declarations were submitted by agreement of the

parties, and the Court accepted the parties’ expert reports. The district court subsequently granted the

Cribbs Ringer Petitioners’ motion for a preliminary

injunction. Pet.App.20a–21a. Respondents appealed,

and the Fifth Circuit held the appeal in abeyance

pending a ruling in Nathan. After Nathan was issued,

Respondents moved to summarily reverse the preliminary injunction in Cribbs Ringer. Petitioners opposed

the motion to preserve their argument that Nathan

was wrongly decided. The Fifth Circuit granted the

motion in a per curiam opinion. Pet.App.3a.

REASONS FOR GRANTING THE PETITION

I. The Decisions Below Conflict with Stone and

this Court’s Other Establishment Clause

Precedents.

The Fifth Circuit usurped this Court’s exclusive

power to overrule Stone. In doing so, it not only decided these cases in a way that conflicts with this

Court’s precedents but also deepened confusion

among the lower courts over how this Court’s Establishment Clause jurisprudence applies.

A. This Court Should Either Summarily Reverse or Grant, Vacate, and Remand

These Cases Because Stone Remains Good

Law.

The Fifth Circuit’s Establishment Clause ruling in

Nathan rests on a fundamentally flawed—and prohibited—assumption: that, in abandoning the threeprong Lemon test, Kennedy somehow also abrogated

Stone. Pet.App.43a. That assumption violates vertical

stare decisis, a core principle of the American judiciary, and is belied by the text of both Stone and Kennedy. Accordingly, the Court should summarily

reverse or grant, vacate, and remand both cases, with

an instruction to apply Stone in the first instance.

1. It is this Court’s prerogative alone to overturn

its own precedents. Indeed, the Court has repeatedly

rejected attempts by lower courts to disregard precedent on the basis that “intervening decisions from this

Court ha[ve] implicitly overruled” them. Mallory, 600

U.S. at 136 (citation modified).

This principle of “vertical stare decisis is absolute,

as it must be in a hierarchical system with ‘one supreme Court.’” Ramos v. Louisiana, 590 U.S. 83, 124

n.5 (2020) (Kavanaugh, J., concurring in part) (quoting U.S. Const. art. III, § 1). “In other words, the state

courts and the other federal courts have a constitutional obligation to follow a precedent of this Court

unless and until it is overruled by this Court.” Id. (emphasis added). Thus, “[i]f a precedent of this Court has

direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court

of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.” Rodriguez de Quijas v.

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

Kennedy did not overturn Stone. It never mentioned Stone. “[T]his Court does not discard

longstanding precedent in this manner.” Carmell v.

Texas, 529 U.S. 513, 538 (2000). It is explicit when it

intends to overrule precedent. See id. (“Collins itself

expressly overruled two of our prior cases; if the Court

that day were intent on overruling part of Calder as

well, it surely would have said so directly, rather than

act in such an ambiguous manner.”); Agostini v. Felton, 521 U.S. 203, 237 (1997) (“We do not

acknowledge, and we do not hold, that other courts

should conclude our more recent cases have, by implication, overruled an earlier precedent.”).

The Fifth Circuit’s decision to unilaterally declare

Stone defunct arrogates to itself a power that belongs

exclusively to this Court. By doing so, the court of appeals disregarded this Court’s explicit directive that

“decisions remain binding precedent until [this Court]

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

subsequent cases have raised doubts about their continuing vitality.” Hohn v. United States, 524 U.S. 236,

252–53 (1998) (citing Rodriguez de Quijas, 490 U.S.

at 484). Because the opinion below egregiously violated vertical stare decisis, this Court should summarily reverse or grant, vacate, and remand for the Fifth

Circuit to apply Stone. See Thompson v. Hebdon, 589

U.S. 1, 6 (2019) (granting certiorari, vacating judgment, and remanding with instruction to consider

whether state law violated First Amendment under

2006 Supreme Court precedent that Ninth Circuit

had deemed not binding); Youngblood v. West Virginia, 547 U.S. 867, 869–70 (2006) (granting certiorari, vacating the decision below, and remanding

because state supreme court had failed to apply or discuss binding U.S. Supreme Court precedent from

1963).

2. Second, even if the Fifth Circuit were not

bound by vertical stare decisis, its conclusion that

“Stone depended entirely on Lemon and nothing but

Lemon[,]” Pet.App.43a, was wrong and is contrary to

this Court’s own description of Stone. In distinguishing a Ten Commandments monument placed on the

Texas Capitol grounds from the public-school classroom displays prohibited by Stone, this Court characterized Stone as relying “almost exclusive[ly]” on two

school-prayer cases, School District of Abington

Township v. Schempp, 374 U.S. 203, 222 (1963), and

Engel v. Vitale, 370 U.S. 421, 431 (1962). Van Orden

v. Perry, 545 U.S. 677, 690–91 (2005) (plurality opinion). Indeed, Stone’s holding was rooted, in large part,

in the Court’s understanding that there was no meaningful difference between the orally delivered religious messages that were held unconstitutional in

Schempp and Engel and those delivered by ubiquitous

scriptural postings in Stone. See 449 U.S. at 42 (“Nor

is it significant that the Bible verses involved in this

case are merely posted on the wall, rather than read

aloud as in Schempp and Engel.”).

Lemon’s demise does not, therefore, abrogate

Stone, as Schempp and Engel predate Lemon, and

Stone rests on doctrinal grounds that are independent

of Lemon and specific to the public-school setting. As

this Court explained in Van Orden, “Stone—along

with Schempp and Engel—was a consequence of the

particular concerns that arise in the context of public

elementary and secondary schools.” Id. at 691 (plurality opinion) (citation modified) (quoting Edwards v.

Aguillard, 482 U.S. 578, 584–85 (1987)). Stone spoke

directly to those concerns, warning that, “[i]f the

posted copies of the Ten Commandments are to have

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

to read, meditate upon, perhaps to venerate and obey,

the Commandments.” 449 U.S. at 42 (emphasis

added).

B. Nathan Has Deepened Confusion About

Kennedy’s Reach, Unsettling Establishment Clause Law.

Stone is on all fours with this case and provides

sufficient reason for summary reversal of the decisions below. But the Fifth Circuit’s rejection of binding precedent also deepened confusion in the lower

courts regarding Kennedy’s reach and application.

1. Although the Fifth Circuit purported to “flesh

out the historical analysis Kennedy demands,”

Pet.App.50a, the resulting decisions directly conflict

with this Court’s longstanding public-school jurisprudence beyond Stone. The court of appeals has departed so far from the fundamental principles

animating the Establishment Clause, infra at 28, that

the ruling itself demonstrates the need for further

guidance from this Court in applying Kennedy. Indeed, in the wake of Kennedy, “[o]pen questions

abound.” Firewalker-Fields v. Lee, 58 F.4th 104, 122

n.8 (4th Cir. 2023); see also, e.g., Hilsenrath v. Sch.

Dist. of the Chathams, 136 F.4th 484, 494–95 (3d Cir.

2025) (Phipps, J., concurring) (identifying unresolved

questions), cert. denied sub nom. Hilsenrath v.

Chathams Sch. Dist. Bd. of Educ., 146 S. Ct. 885

(2025).

2. Moreover, the Fifth Circuit’s decisions create a

new point of confusion for lower courts—one that unsettles Establishment Clause law. Before Nathan,

and consistent with the principle of vertical stare decisis, other circuit courts have uniformly refused to

declare this Court’s binding precedents to be abrogated merely because they rely on Lemon. See Jusino

v. Fed’n of Cath. Tchrs., Inc., 54 F.4th 95, 102 (2d Cir.

2022) (holding that the Supreme Court’s precedent

“remains good law notwithstanding its reliance . . . on

Lemon”); Childs v. Webster, 168 F.4th 1020, 1029–30

(7th Cir. 2026) (explaining that despite being

“grounded in the now-abrogated Lemon approach,”

“[u]nless and until expressly overruled, [the] Cutter

[v. Wilkinson, 544 U.S. 709, 720 n.8 (2005),] rule controls.” (citing Rodriguez de Quijas, 490 U.S. at 484));

cf. Hilsenrath, 136 F.4th at 492–93 (favorably citing

Stone in holding that two lessons on Islam—included

as part of a year-long World Cultures and Geography

class—were not coercive because they “w[ere] ‘integrated into the school curriculum’ as part of ‘an appropriate study of history, civilization,’ and

‘comparative religion’”) (quoting Stone, 449 U.S. at

42). Tellingly, in Kennedy itself and in decisions after

Kennedy, this Court has also relied on and favorably

cited precedents that, like Stone, cited Lemon. See

Kennedy, 597 U.S. at 541 (citing Santa Fe Indep. Sch.

Dist. v. Doe, 530 U.S. 290, 311 (2000)); Cath. Charities

Bureau, Inc. v. Wis. Lab. & Indus. Rev. Comm’n, 605

U.S. 238, 247–48 (2025) (citing Santa Fe and Larson

v. Valente, 456 U.S. 228, 244 (1982)); see also

Mahmoud, 606 U.S. at 554–55 (quoting Edwards, 482

U.S. at 584).

In holding that Stone is no longer good law, the

Fifth Circuit sharply broke with other circuits and

this Court over how to treat such precedent and unsettled Establishment Clause law by creating uncertainty about the reach of the Establishment Clause

following Kennedy’s abrogation of Lemon.

C. The Court of Appeals Was Also Wrong on

the Merits Because It Flouted this Court’s

Other Establishment Clause Precedents.

Even setting aside the Fifth Circuit’s disregard of

Stone and the need for post-Kennedy guidance, review

is warranted because the decisions below conflict with

this Court’s other precedents and the original understanding of the Establishment Clause. By wielding

the State’s compulsory-education power to impose the

tenets of one faith on schoolchildren, S.B. 10 offends

core Founding-era Establishment Clause principles

and bears several historical characteristics of religious establishments. The Fifth Circuit’s contrary

suggestion that “the government’s use of religious

language, imagery, or symbols” can never violate the

Establishment Clause, Pet.App.70a, ignores this

Court’s longstanding solicitude for the context at issue here: government-mandated religious instruction

in public schools.

1. The court of appeals failed to consider the critical role that government-dictated religious education

historically played in religious establishments and

the Founders’ rejection of that practice through the

Establishment Clause. “Religious education was a

central feature of religious establishment.” Christopher C. Lund, Soft Establishment, Religious Education, and Stone v. Graham, 64 J. Cath. Legal Stud. 51,

54 (2026). Indeed, “[a]t every turn, the English religious establishment sought to bring the children of

England into the Church of England.” Id. For example, the 1549 Act of Uniformity—“the sine qua non of

the English religious establishment”—mandated a

“standardized religious curriculum for children” that

included learning the catechism and the Ten Commandments. Id. at 54, 62–63.

Despising English religious tyranny and rejecting

colonial efforts to repeat it, the Founders believed

that government should have no role in promulgating

religious education or otherwise demanding religious

uniformity among the citizenry. Thus, James Madison vehemently condemned a proposed (and ultimately failed) Virginia measure that would have used

property taxes to fund “[t]eachers of the Christian Religion.” Memorial and Remonstrance Against Religious Assessments, Founders’ Constitution, vol. 5, doc.

43,

https://press-pubs.uchicago.edu/founders/documents/amendI_religions43.html. Madison explained:

Religion “must be left to the conviction and conscience

of every man,” not directed by government “force or

violence”—even if some may believe that instructing

such citizens in religion is necessary because they will

not otherwise attain such knowledge. In purporting to

determine “[w]hat the founding generation understood as an establishment of religion,” Pet.App.81a,

the Fifth Circuit majority did not once mention Madison, the principal architect of the First Amendment.

See Schempp, 374 U.S. at 234–35.

2. The Fifth Circuit likewise failed to account for

the unique setting in which this state-directed religious instruction occurs. The decision thus conflicts

with a long line of precedents evincing this Court’s

concern for the Establishment Clause rights of publicschool children. See, e.g., Ill. ex rel. McCollum v. Bd.

of Educ., 333 U.S. 203, 231 (1948); Zorach v. Clauson,

343 U.S. 306, 314–15 (1952); Engel, 370 U.S. at 430–

31; Schempp, 374 U.S. at 223–27; Edwards, 482 U.S.

at 583–84; Lee, 505 U.S. at 591–94; Santa Fe, 530 U.S.

at 307–12. Religious instruction delivered by public

schools, where students are a “captive audience,” is

“problematically coercive” and implicates a “foremost”

historical hallmark of religious establishment. See

Kennedy, 597 U.S. at 537, 541–42 (citing Lee and

Santa Fe as examples of precedents prohibiting religiously coercive school practices). The risk of religious

coercion is especially high because children are compelled to attend school by state law, cannot leave the

classroom, “emulat[e] . . . teachers as role models,”

and are “susceptib[le] to peer pressure.” Edwards, 482

U.S. at 584; accord Mahmoud, 606 U.S. at 557.

The Fifth Circuit dismissed the coercive nature of

the displays because S.B. 10 purportedly does not require students to recite or affirm the Commandments,

pray, or engage in other religious exercise.

Pet.App.69a–70a. But that directly contravenes this

Court’s precedents holding that even “subtle and indirect” pressure by public schools “can be as real as

any overt compulsion” when it comes to religious coercion of children. Lee, 505 U.S. at 593; see also Santa

Fe, 530 U.S. at 312. By mandating that the displays

be permanently posted in “a conspicuous place” in

every classroom and legible “from anywhere in the

classroom,” Pet.App.251a, S.B. 10 ensures that the

State’s preferred scripture is omnipresent and unavoidable, and that students’ attention will be drawn

to the displays while they are with their peers and under the authority of their teachers. In short, S.B. 10

exploits the direct and indirect pressures in public

schools to induce children to read, meditate on, venerate, and follow these religious rules. That constitutes coerced devotional practice and instruction.

3. The Fifth Circuit also announced another unsupported, categorical rule in its denominational preference analysis: that the principle of denominational

neutrality “has no application to government use of

religious language or symbolism.” Pet.App.74a. This

Court has never so held. Rather, the Court recently

affirmed that the “principle of denominational neutrality bars States from passing laws that ‘aid or oppose’ particular religions, . . . or interfere in the

‘competition between sects.’” Cath. Charities, 605 U.S.

at 247–48 (quoting Epperson v. Arkansas, 393 U.S. 97,

106 (1968), and Zorach, 343 U.S. at 314). This “clearest command” of the Establishment Clause is rooted

in the Founders’ colonial experience: “Before the Revolution, religious establishments of differing denominations were common throughout the Colonies.”

Larson, 456 U.S. at 244.

By using the State’s compulsory-education power

to disseminate the religious doctrine of particular

Protestant denominations in all of its classrooms, S.B.

10 puts the State’s thumb on the scale of competition

between religious sects where it matters most—in

children’s daily education. S.B. 10’s interference is especially profound because the very scripture mandated by the State conveys to students who hold

different religious beliefs that those beliefs are wrong

and that their families “‘are outsiders, not full members of the political community.’” See Cath. Charities,

605 U.S. at 248 (quoting Santa Fe, 530 U.S. at 309).

Thus, contrary to the opinion below, S.B. 10 does

“privilege certain religions over others when imposing

burdens or granting benefits.” Pet.App.73a–74a.

II. The Decisions Below Conflict with Mahmoud

and this Court’s Free Exercise Clause

Jurisprudence.

This Court should also grant review of the Fifth

Circuit’s ruling that imposing biblical scripture on

children for nearly every hour they are in public

school does not burden parents’ or children’s religious

exercise. Pet.App.82a. That holding conflicts with this

Court’s decision in Mahmoud and the earlier cases on

which it relies, including Wisconsin v. Yoder, 406 U.S.

205 (1972). If allowed to stand, the decisions below

would render the Free Exercise Clause a dead letter

for the parents and students whose religious freedom

is violated by S.B. 10.

A. The Decisions Below Contravene Precedents of this Court that Protect Families’

Free-Exercise Rights in Public Schools.

The decisions below flout a core constitutional

principle long reflected in this Court’s precedents:

Parents have the right to direct the religious education of their children. See generally Pierce v. Soc’y of

Sisters, 268 U.S. 510 (1925); Yoder, 406 U.S. at 205;

Mahmoud, 606 U.S. at 522. “The practice of educating

one’s children in one’s religious beliefs . . . receives a

generous measure of protection from our Constitution.” Mahmoud, 606 U.S. at 547. That protection includes “limits on the government’s ability to interfere

with a student’s religious upbringing in a public

school setting,” id., and extends beyond “uniquely coercive ‘curricular requirements.’” Mirabelli v. Bonta,

607 U.S. 492, 495 (2026) (per curiam) (interim ruling).

The court of appeals contravened Mahmoud and

these related precedents by holding that Petitioners

showed no adequate free-exercise burden because

“[a]ll the law requires is a poster on a classroom wall.”

Pet.App.84a. That reasoning ignores the explicitly religious nature of the displays, the instructional character of the scripture mandated, and the design of

S.B. 10’s statutory scheme, and it reveals the “feeble”

conception of the Free Exercise Clause at the heart of

the decisions below. See Mahmoud, 606 U.S. at 563.

1. In purporting to distinguish the challenged instruction in Mahmoud from S.B. 10’s scriptural displays, the court of appeals misunderstood this Court’s

decision. If anything, S.B. 10 imposes a more intrusive

burden than the one there. The materials in

Mahmoud were not themselves religious; but their

content was, according to the plaintiffs, contrary to

the families’ religious teachings at home. S.B. 10

mandates the Ten Commandments—overtly religious

instruction in themselves—as the Texas legislature

emphasized in enacting the law, see supra pp. 7–9. It

is thus immaterial whether S.B. 10 requires or encourages teachers to “offer religious reflections” or

“proselytize students who ask about the displays.”

Pet.App.84a. Through their presence on the walls of

every classroom, the displays exhort students to obey

specific, Christian religious directives, including

“Thou shalt have no other gods before me”; “Thou

shalt not make to thyself any graven images”; “Thou

shalt not take the Name of the Lord thy God in vain”;

and “Remember the Sabbath day, to keep it holy.”

Tex. Educ. Code Ann. § 1.0041(c); Pet.App.252a.

Nor does it matter that there are no lesson plans

“instructing that certain students” are to be told that

the religious beliefs and holy texts they are taught at

home are wrong, see Pet.App.84a, because the scriptural posters take care of that, too. A Protestant version of the Ten Commandments is presented as the

authoritative set of classroom religious rules to be followed, and it conveys to students who do not adhere

to this scripture that the religious beliefs and practices instilled by their parents are incorrect and sinful. In other words, S.B. 10 ensures that students will

read and meditate on the Commandments and receive

them as a “religious curriculum designed to shape

[their] beliefs or subvert their parents’ teaching.”

Contra Nathan, 173 F.4th at 609, Pet.App.82a.

By holding that these scriptural displays impose

no free-exercise burden on Petitioners, the Fifth Circuit’s decisions conflict with Mahmoud’s clear recognition of parental free-exercise rights in public

schools. Contrary to Mahmoud, the court of appeals

ignored the fact that S.B. 10 would “substantially interfere with the religious development” of their children or “pose ‘a very real threat of undermining’ the

religious beliefs and practices the parent wishes to instill in the[ir] child[ren].” See Mahmoud, 606 U.S. at

556 (quoting Yoder, 406 U.S. at 218). As this Court

has recognized, “for many Christians, Jews, Muslims,

and others, the religious education of children is not

merely a preferred practice but rather a religious obligation.” Id. at 547. And “[w]hen it comes to the

expression and inculcation of religious doctrine, there

can be no doubt that the messenger matters.” Hosanna-Tabor Evangelical Lutheran Church & Sch. v.

EEOC, 565 U.S. 171, 201 (2012) (Alito, J., concurring).

Petitioners have testified to just that: As a matter of

their religious practice, it is critical that their children’s religious instruction be provided by them at

home, through the family’s place of worship, or via

other religious programs vetted and selected by the

parents—not by the government. Pet.App.211a–227a;

see also supra pp. 10–12, 18–20.

2. The conflict with Mahmoud does not end there.

As with its deeply flawed Establishment Clause analysis, the Fifth Circuit’s free-exercise ruling did not account for “the potentially coercive nature of classroom

instruction.” Mahmoud, 606 U.S. at 554–55 (citing

Lee, 505 U.S. at 592). This Court reaffirmed in

Mahmoud that public schooling “implicates direct, coercive interactions between the State and its young

residents.” 606 U.S. at 557. Indeed, lawmakers’ frank

admissions about S.B. 10 make clear that the law was

intentionally designed to inculcate religious beliefs

and behaviors in students by capitalizing on the

State’s compulsory-education power. See supra pp. 7–

9 (“[W]e want every kid . . . every day, in every classroom they sit in to look on the wall and read . . . those

words [] that God says because we want them to understand how important [] those statements of God,

those rules of God are that they see them in their

classroom every single day of their public

education.”). And, in neglecting to consider these comments, the decisions below further strayed from this

Court’s guidance in Mahmoud. See 606 U.S. at 556

(criticizing the dissent for “ignor[ing] the Board’s

stated reasons for inserting these books into the curriculum”). At bottom, S.B. 10’s scriptural displays impose a coercive burden on children under the Free

Exercise Clause, which “protects against ‘indirect coercion or penalties on the free exercise of religion, not

just outright prohibitions[,]’” Carson v. Makin, 596

U.S. 767, 778 (2022) (quoting Lyng v. Nw. Indian

Cemetery Protective Ass’n, 485 U.S. 439, 450 (1988)),

and ensures the right of public-school children “to

freely choose [their] own course” in matters of faith

without “any compulsion from the state,” Schempp,

374 U.S. at 222.

3. That a different remedy was sought in

Mahmoud, Pet.App.87a, only further illustrates that

S.B. 10’s wide-ranging scriptural-display scheme is

even more burdensome than the policy challenged in

that case. The remedy sought in Mahmoud, an optout, was possible because the challenged LGBTQ+–

inclusive materials were to be used, at most, sporadically as part of the English Language Arts instruction. See 606 U.S. at 538. This enabled children with

objecting parents to be excused from these discrete

lessons and to return to class immediately after the

lessons concluded. See id. at 568–69. By mandating

the Ten Commandments in every classroom, regardless of subject matter taught, and doing so in a

manner designed to draw students’ attention to the

displays, supra p. 30, Texas has ensured that opting

out of the Commandments’ religious instruction

would be impossible. As this Court held in Mahmoud,

the state “cannot escape its obligation to honor parents’ free exercise rights by deliberately designing its

curriculum to make parental opt outs more cumbersome.” Mahmoud, 606 U.S. at 567; see also id. (“There

is no de maximis exception to the Free Exercise

Clause.”).

B. The Decisions Below Create Confusion

Regarding the Reach of Mahmoud and the

Free Exercise Clause.

The Fifth Circuit’s misapprehension of Mahmoud

confirms that the lower courts remain uncertain

about its reach. Since Mahmoud, this Court has already corrected the Sixth and Ninth Circuits for misreading the ruling as “a narrow decision focused on

uniquely coercive ‘curricular requirements.’” Mirabelli, 607 U.S. at 495 (per curiam) (interim ruling); see

also Miller v. McDonald, 146 S. Ct. 879 (2025) (vacating and remanding to the Second Circuit for reconsideration in light of Mahmoud). The decisions below

repeat that mistake, neutering the Free Exercise

Clause in public schools. If this Court does not summarily reverse (or grant, vacate, and remand), the

Court should grant plenary review to clarify

Mahmoud’s scope and resolve this recurring uncertainty.

III. The Petition Presents a Pressing and

Recurring Issue of Nationwide Importance.

“[P]ublic school[s] [are] at once the symbol of our

democracy and the most pervasive means for promoting our common destiny.” Edwards, 482 U.S. at 584

(citation modified) (quoting McCollum, 333 U.S. at

231 (opinion of Frankfurter, J.)). The question of

whether a state may impose scripture on impressionable, captive-audience children—for nearly every

hour of every school day, for up to thirteen years—

implicates the most fundamental guarantees of the

First Amendment and our Nation’s highest ideals.

And Nathan’s sharply divided 9–8 en banc ruling,

with two concurrences and four separate dissents, underscores that this is a question of exceptional importance on which jurists are deeply divided.

The implications of the Fifth Circuit’s decisions extend well beyond the particular school districts and

plaintiffs in Nathan and Cribbs Ringer. Texas’s 1,200plus school districts serve approximately 5.5 million

students who hold a variety of faiths and beliefs; all

will be subjected to S.B. 10’s scriptural displays under

the Fifth Circuit’s decisions.

Review is also needed because the ramifications of

the decisions below are likely to reverberate nationwide. Arkansas passed a similar statute last year,

which has also spawned litigation. See Stinson v.

Fayetteville Sch. Dist. No. 1, 824 F. Supp. 3d 792

(W.D. Ark. 2026) (permanently enjoining defendant

school districts from implementing state Ten Commandments law), appeal docketed, No. 26-1722 (8th

Cir. Apr. 17, 2026). Louisiana’s Ten Commandments

statute has likewise drawn challenges from students

and parents. See Roake v. Brumley, 170 F.4th 292 (5th

Cir. 2026) (en banc) (vacating preliminary injunction

on ripeness grounds).1 And beyond these states, Alabama and Tennessee also have enacted measures this

year related to the display of the Ten Commandments

in public schools. S.B. 99, 2026 Leg., Reg. Sess. (Ala.

2026) (enacted); H.B. 47, 114th Gen. Assemb., Reg.

Sess. (Tenn. 2026) (enacted). In total, over the past

two years, legislatures in at least twenty-four states

have either adopted or considered legislation concerning the posting of the Ten Commandments in their

public schools. See Americans United for Separation

of Church and State, Ten Commandments

Displays in Public Schools Bill Tracker,

https://

www.quorum.us/spreadsheet/external/fWmWADuZLBwTrnGsQMQV/ (last visited August 13, 2026).

If left in place, the decisions below could embolden

state and local governments not only to enact more

Ten Commandments laws, but to attempt other incursions on public-school families’ religious freedom, creating an administrative nightmare and litigation risk

for school districts and diminishing, to an alarming

1 Louisiana filed a Conditional Petition for a Writ of Certiorari

in Roake on May 21, 2026. Dkt. 25-1360. The deadline to respond

is September 28, 2026.

extent, parents’ control over key aspects of their children’s religious education. Indeed, parents “entrust

public schools with the education of their children,

but condition their trust on the understanding that

the classroom will not purposely be used to advance

religious views that may conflict with the private beliefs of the student and his or her family.” Edwards,

482 U.S. at 584. This Court should not allow Texas or

any other state to betray that trust with impunity,

and the Court’s intervention is urgently needed to reaffirm the Religion Clauses’ core protections.

IV.These Cases are Ideal Vehicles to Resolve the

Questions Presented.

Nathan and Cribbs Ringer are ideal vehicles to resolve the questions presented. S.B. 10 is nearly identical to the Kentucky statute in Stone, and Nathan

cannot be reconciled with that binding decision. Moreover, no Article III barriers exist, the Fifth Circuit

having reached the merits in full in Nathan.

The consolidated posture is especially appropriate.

The Cribbs Ringer summary reversal rests entirely on

Nathan, so a single decision on the merits by this

Court will resolve both cases. Petitioners in both Nathan and Cribbs Ringer are represented by the same

counsel and challenge the same statute under the

same constitutional provisions.

Finally, the majority, concurring, and dissenting

opinions in Nathan, along with the live expert

testimony and Petitioners’ testimony by declaration,

fully air the constitutional issues.

For these reasons, these cases present a critical

opportunity for this Court to (1) reassert its exclusive

prerogative—ignored by the court of appeals—to decide if and when a precedent is overruled; (2) reaffirm,

and if necessary clarify, the Establishment Clause

framework the lower courts should apply to governmental religious instruction in the special context of

elementary and secondary public schools; and (3) reinforce parents’ free-exercise right to guide their children’s religious education without interference by the

State.

CONCLUSION

This Court should summarily reverse the judgments below or grant the petition, vacate the judgments below, and remand for application of Stone and

reconsideration of Petitioners’ Free Exercise Clause

claims under Mahmoud. Alternatively, the Court

should grant plenary review.

Respectfully submitted,

Daniel Mach

Heather L. Weaver

AMERICAN CIVIL

LIBERTIES UNION

FOUNDATION

915 15th Street, NW,

Suite 600

Washington, D.C. 20005

Cecillia D. Wang

Evelyn R. Danforth-Scott

AMERICAN CIVIL

LIBERTIES UNION

FOUNDATION

425 California Street,

Suite 700

San Francisco, CA 94104

Louise Melling

AMERICAN CIVIL

LIBERTIES UNION

FOUNDATION

125 Broad Street,

18th Floor

New York, NY 10004

Adriana Piñon

Thomas Buser-Clancy

Chloe Kempf

Sarah Corning

AMERICAN CIVIL

LIBERTIES UNION

FOUNDATION OF

Jonathan K. Youngwood

Counsel of Record

Janet A. Gochman

Griselda Cabrera

Noah M. Huffman

SIMPSON THACHER &

BARTLETT LLP

425 Lexington Avenue

New York, NY 10017

(212) 455-2000

jyoungwood@stblaw.com

V. Noah Gimbel

Jordan T. Krieger

SIMPSON THACHER &

BARTLETT LLP

900 G Street, NW

Washington, D.C. 20001

Patrick C. Elliott

Samuel T. Grover

Nancy A. Noet

FREEDOM FROM

RELIGION FOUNDATION

P.O. Box 750

Madison, WI 53701

Rebecca S. Markert

Alex J. Luchenitser

Amy Tai

Jess Zalph

AMERICANS UNITED

FOR SEPARATION OF

TEXAS

P.O. Box 8306

Houston, TX 77288

CHURCH & STATE

1310 L Street, NW,

Suite 200

Washington, D.C. 20005

Counsel for Petitioners

DATED: August 17, 2026

APPENDIX

TABLE OF APPENDICES

Page

APPENDIX A — ORDER OF THE UNITED

STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT, FILED MAY 29, 2026 . . . . . . . 1a

APPENDIX B — ORDER OF THE UNITED

STATES DISTRICT COURT FOR THE

W E S T E R N DI S T R IC T O F T E X A S ,

S A N A N T ON IO DI V I S ION, F I L E D

NOVEMBER 18, 2025 . . . . . . . . . . . . . . . . . . . . . . . . . 4a

A P P E N DI X C — 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

APRIL 21, 2026 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22a

APPENDIX D — ORDER OF THE UNITED

STATES DISTRICT COURT FOR THE

W E S T E R N DI S T R IC T O F T E X A S ,

S A N A N T ON IO DI V I S ION, F I L E D

AUGUST 20, 2025 . . . . . . . . . . . . . . . . . . . . . . . . . . 169a

APPENDIX E — PROVISIONS INVOLVED . . . . 251a

Tex. Educ. Code Ann. § 1.0041 (“S.B. 10”) . . . . . . 251a

Appendix

A UNITED STATES

APPENDIX A — ORDER

OF THE

COURT OF APPEALS FOR THE FIFTH CIRCUIT,

FILED MAY 29, 2026

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 25-51045

ROXANNE CRIBBS RINGER, on behalf of herself

and on behalf of her minor child, E.R.; JOHN

FUECHSEL, on behalf of himself and on behalf of his

minor children, E.F. and M.F.; AMBER RAINEY, on

behalf of herself and on behalf of her minor child, K.R.;

LENEE BIEN-WILLNER, on behalf of herself and

on behalf of her minor children, E.B.W., P.B.W., and

A.B.W.; JEREMY HALLAND, on behalf of himself

and on behalf of his minor children, N.H. and S.H.;

KIMBERLY INMON, on behalf of herself and on

behalf of her minor child, T.L.; KRISTIN KLADE,

Reverend, on behalf of herself and on behalf of her

minor children, F.K. and W.K.; JOHN KLADE, on

behalf of himself and on behalf of his minor children,

F.K. and W.K.; WHITNEY LAWRENCE, on behalf

of herself and on behalf of her minor children, J.L.

and L.L.; MICHELLE LEWIS, on behalf of herself

and on behalf of her minor child, C.L.; NICHOLE

MANNING, on behalf of herself and on behalf of her

minor children, A.M. and D.J.; MICHAEL OLSON,

on behalf of himself and on behalf of his minor child,

R.O.; SHANNON OLSON, on behalf of herself and on

behalf of her minor child, R.D.; PATRICIA RUIZ, on

behalf of herself and on behalf of her minor child, J.R.;

DANIEL SULLIVAN, on behalf of himself and on

behalf of his minor children, R.S. and N.S.; SINJITA

Appendix A

SULLIVAN, on behalf of herself and on behalf of her

minor children, R.S. and N.S.; MARNEIGH URBAN,

on behalf of herself and on behalf of her minor child,

E.S.; MARIBEL VILLARREAL, on behalf of herself

and on behalf of her minor children, E.G. and E.R.G.,

Plaintiffs-Appellees,

versus

COMAL INDEPENDENT SCHOOL DISTRICT;

GEORGETOWN INDEPENDENT SCHOOL

DISTRICT; CONROE INDEPENDENT

SCHOOL DISTRICT; FLOUR BLUFF

INDEPENDENT SCHOOL DISTRICT; FORT

WORTH INDEPENDENT SCHOOL DISTRICT;

MCKINNEY INDEPENDENT SCHOOL DISTRICT;

FRISCO INDEPENDENT SCHOOL DISTRICT;

NORTHWEST INDEPENDENT SCHOOL

DISTRICT; AZLE INDEPENDENT SCHOOL

DISTRICT; ROCKWALL INDEPENDENT SCHOOL

DISTRICT; LOVEJOY INDEPENDENT SCHOOL

DISTRICT; MANSFIELD INDEPENDENT

SCHOOL DISTRICT,

Defendants-Appellants.

Appeal from the United States District Court

for the Western District of Texas

USDC No. 5:25-CV-1181

UNPUBLISHED ORDER

Appendix A

Before Stewart, Willett, and Wilson, Circuit Judges.

Per Curiam:

IT IS ORDERED that Appellants’ opposed motion

summarily to reverse and vacate the district court’s

preliminary injunction and direct the district court to

render judgment dismissing Plaintiffs’ Establishment and

Free Exercise Clause claims in this action is GRANTED.

See Nathan v. Alamo Heights Indep. Sch. Dist., 173 F.4th

576, 583 (5th Cir. 2026) (en banc); see also Groendyke

Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969)

(Summary disposition is appropriate when “the position

of one of the parties is clearly right as a matter of law so

that there can be no substantial question as to the outcome

of the case.”).

Appendix

B UNITED STATES

APPENDIX B — ORDER

OF THE

DISTRICT COURT FOR THE WESTERN DISTRICT

OF TEXAS, SAN ANTONIO DIVISION,

FILED NOVEMBER 18, 2025

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

CIVIL NO. SA-25-CV-1181-OLG

ROXANNE CRIBBS RINGER, ON BEHALF OF

HERSELF AND ON BEHALF OF HER MINOR

CHILD, E.R. et al.,

Plaintiffs,

COMAL INDEPENDENT SCHOOL DISTRICT et al.,

Defendants.

ORDER

Pending before the Court are Plaintiffs’ Motion

for Temporary Restraining Order and/or Preliminary

Injunction (the “Motion for Preliminary Injunction”) (Dkt.

No. 4) and Defendants’1 Motion to Dismiss and Response

1. Defendants were or ig ina lly compr ised of fou r t een

independent school districts (“ISDs”).. However, two of these ISDs,

Arlington ISD and McAllen ISD, did “not wish to actively participate

. . . in this proceeding.” Dkt. Nos. 48 at 2; 49 at 2. Instead, they have

agreed to be bound by “any rulings entered by this Court in this case

regarding the constitutionality of S.B. 10, including any injunction

that this Court may enter.” Dkt. Nos. 48 at 2; 49 at 2.

Appendix B

in Opposition to Plaintiffs’ Motion for Preliminary

Injunction (the “Motion to Dismiss”) (Dkt. No. 42). For the

reasons that follow, the Motion to Dismiss (Dkt. No. 42)

is DENIED, and the Motion for Preliminary Injunction

(Dkt. No. 4) is GRANTED.

I. BACKGROUND

This case concerns the constitutionality of a recently

enacted Texas law, Senate Bill No. 10 (“S.B. 10”). S.B.

10 requires public schools to “display in a conspicuous

place in each classroom of the school a durable poster or

framed copy of the Ten Commandments.” Tex. Educ. Code

A nn. § 1.0041(a). S.B. 10 also regulates the content, size,

typeface, and readability of such displays. Specifically,

S.B. 10 provides that the text of the Ten Commandments

must be written “in a size and typeface that is legible

to a person with average vision from anywhere in the

classroom,” and that the displays must “be at least 16

inches wide and 20 inches tall.” Id. § 1.0041(b).

Plaintiffs are the parents of public-school children.

They come from a variety of religious backgrounds,

including atheist, agnostic, Christian, Jewish, Baha’i, and

Hindu, but they share one thing in common: Plaintiffs

do not wish their children to be pressured to observe,

venerate, or adopt the religious doctrine contained in the

Ten Commandments. See Dkt. No. 4-4 at 3, 7, 12, 16, 21, 25,

30, 34, 38, 44, 48, 52, 56, 60, 66, 72, 77-78, 86. Defendants

are comprised of ISDs overseeing the public schools where

Plaintiffs’ children attend classes. They have purchased or

taken steps to acquire copies of the Ten Commandments,

and most have begun erecting displays in classrooms

Appendix B

across their respective districts. See Dkt. Nos. 4-4 at 2,

6, 11, 15, 20, 24, 29, 33, 37, 43, 47, 51, 55, 59, 65, 71, 77, 85;

37 at 1; 37-1 at 2; 66-1; 66-2.

On September 22, 2025, Plaintiffs initiated this action.

They assert a facial challenge to S.B. 10 on the grounds

that it violates the Establishment Clause of the First

Amendment, as made applicable to the states through

the Fourteenth Amendment. See Dkt. No. 1 at 61-62. 2 The

following day, Plaintiffs filed the Motion for Preliminary

Injunction. See Dkt. No. 4. On October 20, 2025,

Defendants filed the Motion to Dismiss and responded to

the Motion for Preliminary Injunction. See Dkt. No. 42.

On October 27, 2025, Plaintiffs filed a reply in support of

the Motion for Preliminary Injunction and response in

opposition to the Motion to Dismiss. See Dkt. No. 52. On

November 5, 2025, the Court held an evidentiary hearing

on the Motions. See Dkt. Nos. 62; 67. This Order follows.

II. ANALYSIS

The Motion to Dismiss raises two jurisdictional

issues: Plaintiffs’ standing and the ripeness of their

Establishment Clause claim. See Dkt. No. 42. Accordingly,

the Court begins with the Motion to Dismiss and then

turns to the Motion for Preliminary Injunction. See

Calogero v. Shows, Cali & Walsh, L.L.P., 95 F.4th 951, 958

(5th Cir. 2024) (“As always, jurisdiction first.”).

2. Plaintiffs also assert that S.B. 10 violates the Free Exercise

Clause. See Dkt. No. 1 at 63-64. The Court declines to reach that

claim in this Order.

Appendix B

A. Motion to Dismiss

Standing

Defendants argue that Plaintiffs lack standing

because their injuries are purely hypothetical. Dkt. No.

42 at 16. According to Defendants, Plaintiffs have not

yet encountered any religious displays. Id. Plaintiffs

disagree. They argue that most of their children have, in

fact, encountered the displays. See Dkt. No. 52 at 16-17.

Furthermore, Plaintiffs argue that those who have not

soon will; that is, any ISDs who have not yet erected the

displays “will soon put the displays in classrooms.” Id.

at 18. Plaintiffs provide undisputed evidence in support

thereof. See Dkt. No. 4-4 at 11, 77, 81-82; Pls.’ Ex. 21-AO. 3

The Court agrees with Plaintiffs.

The “judicial Power” of federal courts is limited to

“Cases” or “Controversies.” U.S. Const. art. III, § 2, cl.

1. “The doctrine of standing flows from this constitutional

limitation and is an essential aspect of it.” Contender

Farms, L.L.P. v. U.S. Dep’t of Agric., 779 F.3d 258, 264

(5th Cir. 2015) (citations omitted). The party invoking

3. Defendants objected to the introduction of Plaintiffs’ Exhibit

21-AO on the grounds that it contains hearsay. See Dkt. Nos. 55 at 3;

67 at 47-48. While that may be true, “at the preliminary injunction

stage, the procedures in the district court are less formal, and the

district court may rely on otherwise inadmissible evidence, including

hearsay evidence.” Sierra Club, Lone Star Chapter v. F.D.I.C., 992

F.2d 545,551 (5th Cir. 1993) (citing Fed Say. & Loan Ins. Corp. v.

Dixon, 835 F.2d 554,558-59 (5th Cir. 1987)). Accordingly, Defendants’

objection is OVERRULED.

Appendix B

the Court’s jurisdiction bears the burden of establishing

standing. Spokeo, Inc. v. Robins, 578 U.S. 330, 338, 136 S.

Ct. 1540, 194 L. Ed. 2d 635 (2016) (citing FW/PBS, Inc. v.

Dallas, 493 U.S. 215, 231, 110 S. Ct. 596, 107 L. Ed. 2d 603

(1990)). To do so, that party must demonstrate an injury,

which is “concrete, particularized, and actual or imminent;

fairly traceable to the challenged action; and redressable

by a favorable ruling.” Inst. for Free Speech v. Johnson,

148 F.4th 318, 327 (5th Cir. 2025) (citation modified).

The Court begins with the injury-in-fact element.

Most of Plaintiffs’ children have been (and will continue

to be) subjected to unwelcome religious displays “nearly

every hour of the school day.” See, e.g., Dkt. No. 4-4 at 7.

Indeed, S.B. 10 makes it impossible for their children to

avoid the displays. See Tex. Educ. Code A nn. § 1.0041(b)

(requiring the text to be written “in a size and typeface

that is legible to a person with average vision from

anywhere in the classroom”). There is no question that

these Plaintiffs have suffered constitutionally sufficient

injuries. See Sch. Dist. of Abington Twp. v. Schempp,

374 U.S. 203, 224 n.9, 83 S. Ct. 1560, 10 L. Ed. 2d 844

(1963) (“It goes without saying that the laws and practices

involved here can be challenged only by persons having

standing to complain. ... The parties here are school

children and their parents, who are directly affected by

the laws and practices against which their complaints

are directed. These interests surely suffice to give the

parties standing to complain.”); Valley Forge Christian

Coll. v. Ams. United for Separation of Church & State,

Inc., 454 U.S. 464, 486 n.22, 102 S. Ct. 752, 70 L. Ed. 2d

700 (1982) (“The plaintiffs in Schempp had standing ...

Appendix B

because impressionable schoolchildren were subjected to

unwelcome religious exercises . . . .”).

However, a small minority of Plaintiffs have not yet

encountered the displays. See Dkt. No. 4-4 at 11; 77.

Defendants seize upon this point. According to Defendants,

“cases involving religious displays require an encounter

with the offending item ... to confer standing.” See Dkt.

No. 42 at 17. In support thereof, Defendants primarily rely

upon Doe v. Tangipahoa Parish School Board, 494 F.3d

494 (5th Cir. 2007) (en banc), and Barber v. Bryant, 860

F.3d 345 (5th Cir. 2017). These cases are distinguishable.

Doe is a school prayer case. The school board had a

practice of opening its meetings with prayer. See Doe,

494 F.3d at 498. The father of multiple schoolchildren

objected to that prayer on the grounds that it violated

the Establishment Clause. See id at 497. Agreeing with

the father, the district court permanently enjoined the

board from opening its meetings with prayer. But there

was no evidence that the father or his children ever

attended a school board meeting and, thus, no indication

that they suffered an injury other than “mere abstract

knowledge that [the] invocations were said.” Id. Without

any evidence of an actual or threatened injury, the father

lacked standing. The present case is altogether different.

Plaintiffs’ children attend public school. While the

religious displays have not yet been erected in all their

classrooms, they will be completed soon. See Dkt. No. 4-4

at 11, 77, 81-82; Pls.’ Ex. 21-AO. Defendants assert that

there is no way to know whether the displays will ever

10a

Appendix B

be completed. See Dkt. No. 42 at 18. But that conflicts

with the undisputed evidence cited above. Furthermore,

Defendants have a strong incentive to comply with S.B.

10 as quickly as possible. Texas has threatened to take

“legal action” against ISDs who are “not in compliance.”

See Dkt. No. 66-3 at 45-46. In fact, Texas recently sued

Galveston ISD and its board of trustees due to their

“failure to display the Ten Commandments.” See Original

Petition at 5. For all these reasons, Plaintiffs’ injuries are

actual or imminent—unlike the injuries at issue in Doe.

Barber is similarly inapposite. That case dealt with a

Mississippi law which prohibited the state from taking any

“discriminatory action” against persons holding certain

“religious beliefs or moral convictions.” Barber, 860 F.3d at

350-51. The plaintiffs were Mississippi residents who did

not share those beliefs or convictions. Id. at 351. They sued

state officials to enjoin the implementation of the law. Id.

at 351-52. According to the plaintiffs, the statute violated

the Establishment Clause by sending a message that

Mississippi disapproved of certain lifestyles. Id. at 352. As

in Doe, there was no indication that the plaintiffs suffered

any actual or imminent harm. The plaintiffs analogized

their injuries to those suffered in the religious display

context. See id. at 354. But the plaintiffs had not—and, in

fact, could not—confront the text of a statute. Id. That is,

there was no religious display to cause the alleged harm.

Once again, the present case is quite different. Plaintiffs

have confronted or soon will confront the displays of the

Ten Commandments in their public school classrooms.

See Dkt. Nos. 4-4 at 2, 6, 11, 15, 20, 24, 29, 33, 37, 43, 47,

51, 55, 59, 65, 71, 77, 85; 37 at 1; 37-1 at 2; 66-1; 66-2. That

much is not meaningfully disputed by Defendants.

11a

Appendix B

The traceability and redressability prongs are far

easier. Defendants have erected the challenged displays in

classrooms across their districts or, at the very minimum,

plan to do so soon. Therefore, Plaintiffs’ injuries are fairly

traceable to Defendants’ actions. And those injuries would

be rectified if the Court were to enjoin Defendants from

displaying the Ten Commandments. Because Plaintiffs

have suffered actual or imminent injuries, which are fairly

traceable to Defendants’ actions and redressable by a

favorable ruling, they have standing. See Ingebretsen v.

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

(“There is no need for Ingebretsen to wait for actual

implementation of the statute and actual violations of his

rights under the First Amendment where the statute

‘makes inappropriate government involvement in religious

affairs inevitable.” (quoting Karen B. v. Treen, 653 F.2d

897, 902 (5th Cir. 1981))).

Ripeness

Defendants also argue that Plaintiffs’ Establishment

Clause claim is not ripe for review. According to Defendants,

their claim is “contingent on future events” which may or

may not come to pass. See Dkt. No. 42 at 19-20. Even if

all the ISDs eventually complete the displays, Defendants

assert that it is unclear how they “will be displayed and

contextualized.” Id. at 20. Once again, Plaintiffs disagree.

They argue that most of Defendants “have, in fact, posted

Ten Commandments displays in classrooms.” See Dkt. No.

52 at 24. Even though a small minority have not, Plaintiffs

assert that S.B. 10 carefully regulates the appearance of

the displays. See id. at 25. According to Plaintiffs, these

12a

Appendix B

“rigid requirements” provide “sufficient details about how

the Ten Commandments must be displayed.” Id.

“Ripeness has both constitutional and prudential

dimensions.” Umphress v. Hall, 133 F.4th 455, 467 (5th

Cir. 2025) (citing DM Arbor Ct., Ltd v. City of Houston,

988 F.3d 215, 218 (5th Cir. 2021)). “The ripeness inquiry

involves ‘1) the fitness of the issues for judicial decision

and (2) the hardship to the parties of withholding court

consideration.’” Rosedale Missionary Baptist Church v.

New Orleans City, 641 F.3d 86, 91 (5th Cir. 2011) (quoting

Nat’l Park Hosp. Ass’n v. Dep’f of Interior, 538 U.S. 803,

808, 123 S. Ct. 2026, 155 L. Ed. 2d 1017 (2003)). Generally,

“a case is ripe if it presents questions of law; ‘conversely,

a case is not ripe if further factual development is

required.’” NextEra Energy Cap. Holdings, Inc. v.

Lake, 48 F.4th 306, 316 (5th Cir. 2022) (quoting Choice

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

2012)). Facial challenges are presumptively ripe. This is

so because a facial challenge—which “asserts that a law

always operates unconstitutionally”—is “purely legal”

and “does not require a developed factual record.” See

Whole Woman’s Health v. Cole, 790 F.3d 563, 591 (5th Cir.

2015) (emphasis in original) (quoting Harris v. Mexican

Specialty Foods, Inc., 564 F.3d 1301, 1308 (11th Cir. 2009)),

rev’d on other grounds sub nom. Whole Woman’s Health

v. Hellerstedt, 579 U.S. 582, 136 S. Ct. 2292, 195 L. Ed.

2d 665 (2016).

Plaintiffs bring a facial challenge to S.B. 10 on the

grounds that it violates the Establishment Clause. Their

claim does not require any factual development. S.B.

13a

Appendix B

10 is facially unconstitutional or it is not. Furthermore,

Plaintiffs will suffer hardship if the Court withholds

its consideration of these important issues. Plaintiffs’

children have been or soon will be subjected to unwelcome

religious displays. See, e.g., Elrod v. Burns, 427 U.S. 347,

373, 96 S. Ct. 2673, 49 L. Ed. 2d 547 (1976) (“The loss of

First Amendment freedoms, for even minimal periods

of time, unquestionably constitutes irreparable injury.”).

Accordingly, their claim is ripe for review. Plaintiffs need

not wait until all their children’s First Amendment rights

have been violated to establish a justiciable controversy.

See Ingebretsen, 88 F.3d at 278.

In reaching the opposite conclusion, Defendants rely

upon Staley v. Harris County, 485 F.3d 305 (5th Cir.

2007) (en bane). Their reliance is misplaced. In Staley,

Harris County erected a courthouse monument to honor

a local philanthropist. Id. at 307. The monument included

a “display of the Bible.” Id. The district court ordered the

Bible removed. Id. Initially, the Fifth Circuit affirmed.

Id. But it later granted en banc review and vacated the

panel opinion. Id. Before oral argument, the Fifth Circuit

learned that the courthouse “had closed for renovations

and would likely remain closed for a few years.” Id.

Because the disputed monument was no longer on display,

the Fifth Circuit held that the appeal was moot. Id. at

309. The court also held that “any dispute over a probable

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

[were] no facts . . . to determine whether such a redisplay

[would] violate the Establishment Clause.” Id. That is,

Harris County had not yet made any decision “regarding

any aspect of the future display of the monument.” Id.

14a

Appendix B

The present case is unlike Staley. The displays at

issue here have already been erected in most classrooms,

and the remaining displays will be completed soon. See

Dkt. Nos. 4-4 at 2, 6, 11, 15, 20, 24, 29, 33, 37, 43, 47,

51, 55, 59, 65, 71, 77, 85; 37 at 1; 37-1 at 2; 66-1; 66-2.

Furthermore, all the displays are nearly identical. See

Dkt. Nos. 37-1 at 2; 52-2 at 97; 66-1 at 4, 6-7; 66-2 at 5, 9,

11, 13. S.B. 10 requires as much. See Tex. Educ. Code A nn.

§ 1.0041(a)—(b) (regulating the location, size, typeface,

and content of the displays). Because the contents of

the displays are statutorily prescribed, the Court has

sufficient information to determine whether they violate

the Establishment Clause.

B. Motion for Preliminary Injunction

A preliminary injunction is an “extraordinary remedy”

requiring the movants to “unequivocally show the need

for its issuance.” Valley v. Rapides Par Sch. Bd., 118 F.3d

1047, 1050 (5th Cir. 1997) (citing Allied Mktg. Grp., Inc.

v. CDL Mktg., Inc., 878 F.2d 806, 809 (5th Cir. 1989)). To

obtain such relief, the movants must demonstrate: “(1) a

substantial likelihood that they will prevail on the merits;

(2) a substantial threat that they will suffer irreparable

injury if the injunction is not granted; (3) their substantial

injury outweighs the threatened harm to the party to be

enjoined; and (4) granting the preliminary injunction will

not disserve the public interest.” Voting for Am., Inc. v.

Steen, 732 F.3d 382, 386 (5th Cir. 2013) (quoting Tex. Med.

Providers Performing Abortion Servs. v. Lakey, 667 F.3d

570, 574 (5th Cir. 2012)).

15a

Appendix B

Plaintiffs request preliminary injunctive relief. See

Dkt. No. 4. They ask the Court to enjoin Defendants

from “complying with S.B. 10 by displaying the Ten

Commandments in public classrooms and requiring all

Defendants to immediately remove any S.B. 10 displays

currently posted.” Id. at 25. According to Plaintiffs, this

is a simple case. They assert that it is controlled by Stone

v. Graham, 449 U.S. 39, 101 S. Ct. 192, 66 L. Ed. 2d 199

(1980) (per curiam). See Dkt. No. 4 at 9-11. Defendants

disagree. They argue that Stone is no longer good law.

See Dkt. No. 42 at 31. The Court agrees with Plaintiffs.

In reaching this conclusion, the Court begins with a brief

history of Establishment Clause jurisprudence and then

turns to the merits of Plaintiffs’ request.

The Establishment Clause prohibits the making of any

“law respecting an establishment of religion.” U.S. Const.

amend. I. Early Supreme Court cases applied a variety

of different Establishment Clause tests. Compare Sch.

Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 222,

83 S. Ct. 1560, 10 L. Ed. 2d 844 (1963) (“[T]o withstand

the strictures of the Establishment Clause there must be

a secular legislative purpose and a primary effect that

neither advances nor inhibits religion.”), with Walz v.

Tax Comm’n of City of N.Y., 397 U.S. 664, 674 (1970) (“We

must also be sure that the end result—the effect—is not

an excessive government entanglement with religion.”). In

Lemon v. Kurtzman, 403 U.S. 602, 91 S. Ct. 2105, 29 L. Ed.

2d 745 (1971), the Supreme Court “ambitiously attempted

to find a grand unified theory of the Establishment

Clause.” Am. Legion v. Am. Humanist Ass’n, 588 U.S.

16a

Appendix B

29, 60, 139 S. Ct. 2067, 204 L. Ed. 2d 452 (2019). To that

end, Lemon established a three-part test: “First, the

statute must have a secular legislative purpose; second,

its principal or primary effect must be one that neither

advances nor inhibits religion; finally, the statute must

not foster an excessive government entanglement with

religion.” Lemon, 403 U.S. at 612-13 (citation modified).

Several years later, in Stone, the Supreme Court held

that displaying the Ten Commandments on the wall of a

public-school classroom—in the absence of any legitimate

educational purpose—violates the Establishment Clause.

Stone, 449 U.S. at 41-42. The Court relied on Lemon and

two early school prayer cases, Schempp, cited above, and

Engel v. Vitale, 370 U.S. 421, 82 S. Ct. 1261, 8 L. Ed. 2d

601 (1962).

Over the following decades, the Court repeatedly

questioned Lemon. For example, in Van Orden v. Perry,

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

another Ten Commandments case, the Court declined

to follow Lemon, opting instead to conduct a historical

analysis. Id. at 686 (“Whatever may be the fate of the

Lemon test in the larger scheme of Establishment Clause

jurisprudence, we think it not useful in dealing with the

sort of passive monument that Texas has erected on its

Capitol grounds. Instead, our analysis is driven both by

the nature of the monument and by our Nation’s history.”).

Nevertheless, the Court recognized that its public school

cases, like Stone, Schempp, and Engel, remain good

law. Id. at 690-91. That is so because the Court has been

“vigilant in monitoring compliance with the Establishment

17a

Appendix B

Clause in elementary and secondary schools.” Id. at 691

(quoting Edwards v. Aguillard, 482 U.S. 578, 583-84, 107

S. Ct. 2573, 96 L. Ed. 2d 510 (1987)).

Recently, the Supreme Court abandoned Lemon

altogether in favor of interpreting the Establishment

Clause by “reference to histor ical practices and

understandings.” Kennedy v. Bremerton Sch. Dist., 597

U.S. 507, 535, 142 S. Ct. 2407, 213 L. Ed. 2d 755 (2022)

(quoting Town of Greece v. Galloway, 572 U.S. 565,

576, 134 S. Ct. 1811, 188 L. Ed. 2d 835 (2014)) (internal

quotation marks omitted). Once again, the Court gave no

indication that it was abrogating or overruling any of its

public school cases.

While Kennedy abrogated Lemon, Defendants

overstate its impact on early Establishment Clause cases.

Had the Court intended to overrule Stone, Schempp,

or Engel, it would have said so. It did not. Indeed, even

in Van Orden, which adopted the historical approach

later propounded in Kennedy, the Court recognized the

continued vitality of such cases. See Van Orden, 545 U.S.

at 690-91. Even if Kennedy undermined Stone to some

extent, it would still control this case. Lower courts must

apply controlling Supreme Court precedent, even when

it “appears to rest on reasons rejected in some other

line of decisions.” Rodriguez de Quijas v. Shearson/Am.

Express, Inc., 490 U.S. 477, 484, 109 S. Ct. 1917, 104 L.

Ed. 2d 526 (1989).

The present case is factually indistinguishable from

Stone. The state statutes are remarkably similar. If

18a

Appendix B

anything, S.B. 10 mandates more intrusive displays of

the Ten Commandments than those at issue in Stone.

Compare Tex. Educ. Code Ann. § 1.0041(a)—(b) (requiring

the displays to be placed “in a conspicuous place in each

classroom” and include text “that is legible to a person

with average vision from anywhere in the classroom”),

with Ky. Rev. Stat. A nn. § 158.178 (requiring the displays

to be placed “on a wall in each . . . classroom”). Because

displaying the Ten Commandments on the wall of a

public-school classroom as set forth in S.B. 10 violates

the Establishment Clause, see Stone, 449 U.S. at 41-42,

Plaintiffs are likely to prevail on the merits of their claim.

The remaining preliminary injunction factors also

weigh in favor of injunctive relief. If the Court does not

grant injunctive relief, Plaintiffs will suffer the “loss of

First Amendment freedoms,” which “unquestionably

constitutes irreparable injury.” Elrod, 427 U.S. at 373.

Because the government opposes the injunction, the

balance of harm and public interest factors merge.

AbbVie, Inc. v. Fitch, 152 F.4th 635, 642 (5th Cir. 2025).

The combined analysis of these factors is straightforward.

It plainly serves the public interest to protect First

Amendment freedoms. Texans for Free Enter. v. Tex.

Ethics Comm’n, 732 F.3d 535, 539 (5th Cir. 2013) (citation

omitted).

C. Scope of Relief

Because Plaintiffs are entitled to a preliminary

injunction, the only remaining question is the scope of

the relief. Plaintiffs ask the Court to enjoin Defendants

19a

Appendix B

from “complying with S.B. 10 by displaying the Ten

Commandments in public classrooms and requiring all

Defendants to immediately remove any S.B. 10 displays

currently posted.” Dkt. No. 4 at 25. Defendants assert

that this relief is “far too broad.” See Dkt. No. 42 at

36. They argue that any injunction should be limited to

“specific schools that Plaintiffs’ children attend.” Id. at

37. According to Defendants, a broader injunction would

impermissibly provide more than “complete relief.” Id.

Plaintiffs disagree. They argue that their children “travel

from school to school to participate in both mandatory

and voluntary school-related activities.” Dkt. No. 52 at 48.

Thus, “restricting the scope of a preliminary injunction to

just the individual child-Plaintiffs’ classrooms or schools

is unlikely to avoid constitutional injury.” Id. The Court

agrees with Plaintiffs.

Defendants’ narrow construction of “complete relief”

ignores the practical reality of the public school system.

Plaintiffs introduced undisputed evidence that their

children move between schools within their ISDs for

school-related activities. See Dkt. No. 52-2. Therefore, it is

impracticable, if not impossible, to prevent Plaintiffs from

being subjected to unwelcome religious displays without

enjoining Defendants from enforcing S.B. 10 across their

districts. See, e.g., Stinson v. Fayetteville Sch. Dist. No. 1,

798 F. Supp. 3d 931, 2025 U.S. Dist. LEXIS 149558 (W.D.

Ark. 2025); Nathan v. Alamo Heights Indep. Sch. Dist.,

795 F. Supp. 3d 910, 2025 U.S. Dist. LEXIS 162056 (W.D.

Tex. 2025); see also Jackson Fed’n of Tchrs. v. Fitch, 799

F. Supp. 3d 571, 2025 U.S. Dist. LEXIS 159460 (S.D. Miss.

2025) (remarking that “it would be impracticable, if not

20a

Appendix B

impossible, to carve out an injunction that is distinctly

limited to the named plaintiffs”).

III. CONCLUSION

For the forgoing reasons, the Motion to Dismiss (Dkt.

No. 42) is DENIED, and the Motion for Preliminary

Injunction (Dkt. No. 4) is GRANTED.

IT IS HEREBY ORDERED that 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 are

PRELIMINARILY ENJOINED from displaying the Ten

Commandments pursuant to S.B. 10. The Court waives

the bond requirement of Rule 65(c).

IT IS FURTHER ORDERED that, by Monday,

December 1, 2025, Defendants shall remove any displays

of the Ten Commandments presently erected in any

classrooms within their districts.

IT IS FURTHER ORDERED that, by Tuesday,

December 9, 2025, Defendants shall file an advisory

certifying their compliance with this Order.

IT IS FURTHER ORDERED that all future

deadlines and proceedings in this case are STAYED

pending the resolution of any appeal of this Order and

the resolution of related cases pending before the Fifth

Circuit. See Roake v. Brumley, No. 24-30706 (5th Cir.

21a

Appendix B

2024); Nathan v. Alamo Heights Indep., Sch. Dist., No.

25-50695, 2025 U.S. Dist. LEXIS 162056.

SIGNED this 18 day of November, 2025.

/s/ Orlando L. Garcia

Orlando L. Garcia

United States District Judge

22a

Appendix

APPENDIX C — OPINION

OF THE

UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT,

FILED APRIL 21, 2026

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 25-50695

MARA NATHAN, RABBI, on behalf of herself and on

behalf of her minor child, M.N.; VIRGINIA GALAVIZ

EISENBERG, on behalf of herself and on behalf of her

minor child, R.E.; RON EISENBERG, on behalf of

himself and on behalf of his minor child, R.E.; SETH

ETTINGER, CANTOR, on behalf of himself and on

behalf of his minor child, R.E.; SARAH ETTINGER,

on behalf of herself and on behalf of her minor child,

R.E.; ELIZABETH LEMASTER, on behalf of herself

and on behalf of her minor children, K.L. & L.L.;

CARAH HELWIG, on behalf of herself and on behalf

of her minor children, J.P. & T.P.; ALYSSA MARTIN,

on behalf of herself and on behalf on her minor child,

H.B.M.; CODY BARKER, on behalf of himself and on

behalf of his minor child, H.B.M.; LAUREN ERWIN,

on behalf of herself and on behalf of her minor child,

M.E.; REBEKAH LOWE, on behalf of herself and

on behalf of her minor children, E.R.L. & E.M.L.;

THEODORE LOWE, on behalf of himself and on behalf

of his minor children, E.R.L. & E.M.L.; MARISSA

NORDEN, on behalf of herself and on behalf of her

minor children, E.N. & A.N.; WILEY NORDEN, on

behalf of himself and on behalf of his minor children,

E.N. & A.N.; JOSHUA FIXLER, RABBI, on behalf

of himself and on behalf on his minor children, D.F.,

E.F., & F.F.; CYNTHIA MOOD, REVEREND, on

behalf of herself and on behalf of her minor children,

23a

Appendix C

L.M. & C.M.; CHERYL REBECCA SMITH, on behalf

of herself and on behalf of her minor child, L.P.J.;

ARVIND CHANDRAKANTAN, on behalf of himself

and on behalf of his minor children, V.C., M.C. & A.C.;

ALLISON FITZPATRICK, on behalf of herself and

on behalf of her minor children, C.F. & H.F.; MARA

RICHARDS BIM, on behalf of herself and on behalf of

her minor child, H.B.,

Plaintiffs-Appellees,

versus

ALAMO HEIGHTS INDEPENDENT SCHOOL

DISTRICT; NORTH EAST INDEPENDENT

SCHOOL DISTRICT; LACKLAND INDEPENDENT

SCHOOL DISTRICT; NORTHSIDE INDEPENDENT

SCHOOL DISTRICT; LAKE TRAVIS

INDEPENDENT SCHOOL DISTRICT; DRIPPING

SPRINGS INDEPENDENT SCHOOL DISTRICT;

FORT BEND INDEPENDENT SCHOOL DISTRICT;

CYPRESS FAIRBANKS INDEPENDENT SCHOOL

DISTRICT; PLANO INDEPENDENT SCHOOL

DISTRICT,

Defendants-Appellants.

Appeal from the United States District Court

for the Western District of Texas

USDC No. 5:25-CV-756

Before Elrod, Chief Judge, and Jones, Smith, Stewart,

R ichm a n , S ou th w ick , H ay nes , G r av es , H igginson ,

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

Douglas, and Ramirez, Circuit Judges.

* Judges Willett, Ho, and Oldham join all except Part III of

this opinion.

24a

Appendix C

Stuart Kyle Duncan, Circuit Judge, joined by Elrod,

Chief Judge, and Jones, Smith, Willett, Ho, Engelhardt,

Oldham, and Wilson, Circuit Judges.*

INTRODUCTION

A Texas law (S.B. 10) requires public schools to display

a copy of the Ten Commandments in classrooms. We

consider whether that law violates the Establishment or

Free Exercise Clause of the First Amendment.

Plaintiffs are Texans of various religious backgrounds

with minor schoolchildren. They sue on two grounds.

First, they claim the law is an “establishment of religion.”

Second, they claim the law burdens religious exercise by

coercing their children to reverence the Commandments.

A district court agreed with both claims and enjoined the

law, relying on our decision in a similar Louisiana case.

See Roake v. Brumley (Roake Panel), 141 F.4th 614 (5th

Cir.), vacated, 154 F.4th 329 (5th Cir. 2025) (mem.).

We agreed to hear the Louisiana case en banc and

the Texas case alongside it. We have since dismissed the

Louisiana case as unripe. See Roake v. Brumley (Roake

En Banc), 170 F.4th 292, 300 (5th Cir. 2026) (en banc) (per

curiam). Because of differences between the statutes,

however, the Texas case is ripe and we can decide it.

We conclude the Texas law does not violate either the

Establishment Clause or the Free Exercise Clause. Here

is a summary of our reasons.

First, the Establishment Clause. Plaintiffs primarily

claim we are bound by Stone v. Graham, 449 U.S. 39,

25a

Appendix C

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

which invalidated a similar Kentucky law decades ago.

We disagree. Stone applied an analysis—the “Lemon

test”—which confounded courts for decades. See Lemon

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

745 (1971). Mercifully, the Supreme Court jettisoned

Lemon and its offspring some years ago. See Kennedy

v. Bremerton Sch. Dist., 597 U.S. 507, 534, 142 S. Ct.

2407, 213 L. Ed. 2d 755 (2022) (recognizing the Court

has “abandoned Lemon”). With Lemon extracted, there

is nothing left of Stone.

In place of Lemon, courts now ask a question rooted

in the past: does the law at issue resemble a founding-era

religious establishment? Answering that question requires

delving into historical sources and scholarship. These

show that, in the late 18th century, an “establishment

of religion” was a familiar institution: a polity’s official

church or religion. The paradigm was the Church of

England. Over half the states had establishments when

the First Amendment was adopted, and the remnants of

those establishments persisted for decades.

Establishments were formed by a web of laws.

Typical elements were laws compelling attendance at the

official church; laws controlling doctrine, worship, and

governance; laws punishing dissenters; laws exacting

religious taxes; and laws deploying churches for public

functions. Establishments in the colonies and states

took various forms, but all shared at least some of

these hallmarks. And when the states dismantled their

establishments—the last falling in 1833—they repealed

the laws that had created them.

26a

Appendix C

S.B. 10 looks nothing like a historical religious

establishment. It does not tell churches or synagogues

or mosques what to believe or how to worship or whom to

employ as priests, rabbis, or imams. It punishes no one who

rejects the Ten Commandments, no matter the reason. It

levies no taxes to support any clergy. It does not co-opt

churches to perform civic functions. These are the kinds

of things “establishments of religion” did at the founding.

S.B. 10 does none of them.

Plaintiffs counter that, like historical establishments,

S.B. 10 is “coercive” because it pressures children to

honor the Ten Commandments. Not so. S.B. 10 requires

no religious exercise or observance. Students are neither

catechized on the Commandments nor taught to adopt

them. Nor are teachers commanded to proselytize

students who ask about the displays or contradict students

who disagree with them.

Most importantly, the “coercion” characteristic of

religious establishments was government pressure to

engage in religious worship. That’s why establishments

prescribed liturgies and punished those who skipped them.

S.B. 10 is far from that. It puts a poster on a classroom

wall. Yes, Plaintiffs have sincere religious disagreements

with its content. But that does not transform the poster

into a summons to prayer.

Because the Texas law has none of the elements of a

founding-era establishment of religion, the district court

erred in ruling that the law violates the Establishment

Clause.

27a

Appendix C

Second, the Free Exercise Clause. Plaintiffs rely

heavily on the Supreme Court’s decision in Mahmoud v.

Taylor, 606 U.S. 522, 145 S. Ct. 2332, 222 L. Ed. 2d 695

(2025). But, instead of supporting Plaintiffs, that decision

shows why their claims fail.

In Mahmoud, a school district designed a compulsory

curriculum to “disrupt” students’ beliefs about sexuality

and gender. Id. at 528-29. Teachers were to inform

students that their religious views on these topics were

“hurtful, perhaps even hateful” and that their parents’

views were wrong. Id. at 553. No opt outs were permitted.

Id. at 543. The Supreme Court ruled the school violated

the parents’ right to direct their children’s religious

upbringing. See id. at 529-30.

S.B. 10 bears no resemblance to the oppressive

curriculum in Mahmoud. As noted, S.B. 10 authorizes

no religious instruction and gives teachers no license to

contradict children’s religious beliefs (or their parents’).

No child is made to recite the Commandments, believe

them, or affirm their divine origin. Cf. W. Va. State Bd.

of Educ. v. Barnette, 319 U.S. 624, 63 S. Ct. 1178, 87 L.

Ed. 1628 (1943).

To Plaintiffs, merely exposing children to religious

language is enough to make the displays engines of

coercive indoctrination. We disagree. The curriculum

in Mahmoud went far beyond books sitting silently on

classroom shelves. Those materials were deployed by

teachers with lesson plans designed to subvert children’s

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Appendix C

religiously grounded views on marriage and gender. S.B.

10 authorizes nothing of the sort.

Because Plaintiffs fail to show that S.B. 10 substantially

burdens their right to religious exercise, their Free

Exercise claims must be dismissed.

Accordingly, we REVERSE the district court’s

judgment, VACATE the preliminary injunction, and

RENDER judgment dismissing Plaintiffs’ Establishment

and Free Exercise claims.

I. Background

In June 2025, the Texas Legislature enacted S.B. 10,

which requires public elementary and secondary schools

to display in each classroom a “durable poster or framed

copy of the Ten Commandments.” Tex. Educ. Code A nn.

§ 1.0041(a) (West 2025). The poster or copy must measure

“at least 16 inches wide and 20 inches tall,” use an easily

readable typeface, and be “display[ed] in a conspicuous

place.” Id. § 1.0041(a), (b)(1)-(2). The display must include

only the following text:

The Ten Commandments

I AM the LORD thy God.

Thou shalt have no other gods before me.

Thou shalt not make to thyself any

graven images.

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Appendix C

Thou shalt not take the Name of the Lord

thy God in vain.

Remember the Sabbath day, to keep it holy.

Honor thy father and thy mother, that thy

days may be long upon the land which the

Lord thy God giveth thee.

Thou shalt not kill.

Thou shalt not commit adultery.

Thou shalt not steal.

Thou shalt not bear false witness against

thy neighbor.

Thou shalt not covet thy neighbor’s house.

Thou shalt not covet thy neighbor’s wife, nor

his manservant, nor his maidservant, nor his

cattle, nor anything that is thy neighbor’s.

Id. § 1.0041(c).

Texas schools can acquire the displays in two ways.

First, they must accept compliant, privately donated

displays that “do[] not contain any additional content.” Id.

§ 1.0041(d)(1), (d)(1)(B). Second, they “may, but [are] not

required to,” purchase compliant displays “using district

funds.” Id. § 1.0041(e). S.B. 10 was set to go into effect on

September 1, 2025.

30a

Appendix C

Shortly after S.B. 10’s passage, parents of various

religious backgrounds (“Plaintiffs”) sued several Texas

school districts (“Defendants”) on behalf of themselves

and their minor children. Plaintiffs claimed S.B. 10 facially

violated the Establishment and Free Exercise Clauses

and sought a preliminary injunction. Defendants moved

to dismiss based on lack of ripeness and standing and for

failure to state a claim.

Following a two-day hearing, the district court issued

a creative1 opinion denying Defendants’ motion to dismiss

and granting a preliminary injunction. See Nathan, 795

F. Supp. 3d at 948-49.

As to the Establishment claim, the district court

followed our court’s since-vacated panel decision, Roake

Panel, 141 F.4th 614, which ruled that a Louisiana

law requiring Ten Commandments displays in public

classrooms constituted a religious establishment. See

Nathan, 795 F. Supp. 3d at 939-48; Roake Panel, 141

F.4th at 639-46. Specifically, the court held that the

Texas law lacked a secular purpose and therefore ran

1. For example, the opinion contains section headings such as

“Eternity Is a Long Time,” “Diversity of Homo Sapiens Religious

and Life After Death Beliefs,” and “Grace and Torture,” Nathan v.

Alamo Heights Indep. Sch. Dist., 795 F. Supp. 3d 910, 917-18 (W.D.

Tex. 2025); quotations from musicians Kenny Chesney and Sonny

and Cher, id. at 917 & n.7, 920 & n.22; photographs of Adolf Hitler

and Charlton Heston, id. at 922, 928; and the finding that “Children

can be cruel,” id. at 948. The opinion concludes with a prayer: “For

those who disagree with the Court’s decision and who would do so

with threats, vulgarities[,] and violence, Grace and Peace unto you.

May humankind of all faiths, beliefs[,] and non-beliefs be reconciled

one to another. Amen.” Id. at 949.

31a

Appendix C

afoul of Stone v. Graham. See Nathan, 795 F. Supp. 3d at

939-42. Alternatively, the court held the law was invalid

under Kennedy, because the court discerned no “broader

tradition of using the Ten Commandments in public

education.” Nathan, 795 F. Supp. 3d at 942.

As to the Free Exercise claim, the court held the law

likely undermined Plaintiffs’ parental rights and coerced

their children into religious observance. Id. at 947-48.

After finding Plaintiffs met the preliminary-injunction

standard, the court enjoined S.B. 10’s implementation. Id.

at 948-49. In its conclusion, the court suggested Texas

could instead require the posting of “lessons of behavior,”

such as the “Five Moral Precepts of Buddhism” or sayings

from the book All I Really Need to Know I Learned in

Kindergarten. Id. at 948; see Robert Fulghum, A ll I

Really Need To K now I Learned In K indergarten

(1986).

Defendants appealed and sought initial en banc

hearing. Our court subsequently granted en banc

rehearing in Roake and, soon after, granted Defendants’

motion for initial en banc hearing. See Roake, 154 F.4th

at 332; Nathan v. Alamo Heights Indep. Sch. Dist., 157

F.4th 713, 714 (5th Cir. 2025) (mem.) (per curiam). The

two cases were consolidated for argument.

II. Standard Of Review

We review the district court’s ruling on the motion to

dismiss de novo. Norsworthy v. Hous. Indep. Sch. Dist.,

70 F.4th 332, 336 (5th Cir. 2023). We accept all well-pled

32a

Appendix C

facts as true and construe the complaint in the light

most favorable to the plaintiff. Ibid. “However, we do not

accept as true conclusory allegations, unwarranted factual

inferences, or legal conclusions.” Ibid. (quotation omitted).

“We review the district court’s grant of [a] preliminary

injunction for abuse of discretion, reviewing underlying

factual findings for clear error and legal conclusions de

novo.” United States v. Abbott, 110 F.4th 700, 708 (5th Cir.

2024) (en banc) (alteration in original) (quotation omitted);

see also 28 U.S.C. § 1292(a)(1). “When a district court

applies incorrect legal principles, it abuses its discretion.”

Little v. Llano County, 138 F.4th 834, 841 (5th Cir. 2025)

(en banc) (quotation omitted), cert. denied, 146 S. Ct. 886,

223 L. Ed. 2d 274 (2025) (mem.).

III. Justiciability

The district court ruled that Plaintiffs had standing

to bring a pre-enforcement facial challenge to S.B. 10 and

that the challenge was ripe. Nathan, 795 F. Supp. 3d at

931-32, 943. On appeal, Defendants contest standing but

not ripeness. We consider both issues because they are

jurisdictional. See Steel Co. v. Citizens for a Better Env’t,

523 U.S. 83, 95, 118 S. Ct. 1003, 140 L. Ed. 2d 210 (1998)

(“[E]very federal appellate court has a special obligation

to satisfy itself . . . of its own jurisdiction . . . .” (alteration

in original) (quotation omitted)).

A. Standing

“To have standing to sue in federal court, a plaintiff

must show he has suffered an injury traceable to the

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Appendix C

defendant which the court’s judgment would likely

redress.” Deanda v. Becerra, 96 F.4th 750, 755 (5th Cir.

2024). In pre-enforcement challenges, “a plaintiff must

show that ‘the threatened injury is certainly impending,

or there is a substantial risk that the harm will occur.’”

Mahmoud, 606 U.S. at 560 (quoting Susan B. Anthony

List v. Driehaus, 573 U.S. 149, 158, 134 S. Ct. 2334, 189

L. Ed. 2d 246 (2014)). Because “standing is not dispensed

in gross,” TransUnion LLC v. Ramirez, 594 U.S. 413, 431,

141 S. Ct. 2190, 210 L. Ed. 2d 568 (2021), Plaintiffs must

show standing for each claim.

Establishment Clause Standing

The concept of harm in Establishment Clause cases

is “particularly elusive.” Barber v. Bryant, 860 F.3d 345,

353 (5th Cir. 2017) (quoting Murray v. City of Austin, 947

F.2d 147, 151 (5th Cir. 1991)). Direct harm and offense are

the two competing theories. Direct harm occurs when

the government allegedly coerces religious practice, such

as requiring public-school students to pray. See Engel v.

Vitale, 370 U.S. 421, 82 S. Ct. 1261, 8 L. Ed. 2d 601 (1962).

Offended-observer standing, by contrast, finds injury in

the offense a plaintiff perceives from the religious content

of government action. See Am. Legion v. Am. Humanist

Ass’n, 588 U.S. 29, 37, 139 S. Ct. 2067, 204 L. Ed. 2d 452

(2019) (plaintiffs claiming “they [were] offended by the

sight of the memorial [cross] on public land”).

Plaintiffs have standing under the first theory, so

we need not consider the second. They allege direct

harm because Texas requires their children to attend

school in classrooms where the Ten Commandments

34a

Appendix C

will be posted, which Plaintiffs claim coerces religious

observance. Future encounters between their children

and the displays are thus “likely, if not certain.” Lee v.

Weisman, 505 U.S. 577, 584, 112 S. Ct. 2649, 120 L. Ed.

2d 467 (1992). 2 We conclude Plaintiffs have standing to

pursue their Establishment Clause claims.

Free Exercise Clause Standing

To pursue a Free Exercise claim, “a plaintiff must

allege that his or her own ‘particular religious freedoms

are infringed.’” Littlefield v. Forney Indep. Sch. Dist.,

268 F.3d 275, 292 n.25 (5th Cir. 2001) (quoting Sch. Dist.

of Abington Twp. v. Schempp, 374 U.S. 203, 224 n.9, 83

S. Ct. 1560, 10 L. Ed. 2d 844 (1963)). Parents may assert

that the government has undermined their right to direct

their children’s “religious upbringing” by “substantially

interfering with the[ir] religious development.” Wisconsin

v. Yoder, 406 U.S. 205, 213-14, 218, 92 S. Ct. 1526, 32 L.

Ed. 2d 15 (1972). And students, of course, may assert that

their own right to religious exercise has been infringed.

See Mahmoud, 606 U.S. at 546 (government violates

children’s free-exercise rights by abridging their ability

to “hold religious beliefs of all kinds” (quoting Kennedy,

597 U.S. at 524)). Accordingly, “[s]tudents and parents may

challenge unconstitutional actions in the public schools

that directly affect the students.” Littlefield, 268 F.3d at

283 n.7.

2. We therefore need not address Defendants’ argument that

the concept of offended-observer standing is no longer valid.

35a

Appendix C

Under these principles, Plaintiffs have standing to

pursue their Free Exercise claims. On the parents’ part,

they allege that they disagree with the religious content

of the displays and that the law will therefore burden their

right to direct their children’s religious upbringing. See

Mahmoud, 606 U.S. at 546-47; Yoder, 406 U.S. at 213-14.

On the children’s part, Plaintiffs allege children may feel

pressured to adopt or reverence the Commandments to

avoid disfavor from peers or school officials. See Schempp,

374 U.S. at 224 n.9.

In sum, Plaintiffs have standing to pursue both their

Establishment and Free Exercise Clause challenges.

B. Ripeness

“[W]e ‘must be convinced that the claim in question is

ripe, even if neither party has raised the issue.’” Opulent

Life Church v. City of Holly Springs, 697 F.3d 279, 287 (5th

Cir. 2012) (quoting Urban Devs. LLC v. City of Jackson,

468 F.3d 281, 292 (5th Cir. 2006)); see also, e.g., Trump v.

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

365 (2020) (per curiam) (“[T]he case must be ‘ripe’—not

dependent on contingent future events that may not occur

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

omitted)). Ripeness turns on “(1) the fitness of the issues

for judicial decision[,] and (2) the hardship to the parties

of withholding court consideration.” Braidwood Mgmt.

v. EEOC, 70 F.4th 914, 930 (5th Cir. 2023) (quotations

omitted).

36a

Appendix C

First, fitness. Plaintiffs’ facial challenge is fit for

decision because “it presents a pure question of law that

needs no further factual development.” Ibid. Everything

needed to resolve their claims is in the statutory text.

S.B. 10 mandates the displays’”only” content, Tex. Educ.

Code A nn. § 1.0041(a)-(c) (West 2025), prescribes their

size, id. § 1.0041(b)(2), and requires they be posted “in

a conspicuous place” where they can be read “from

anywhere in the classroom,” id. § 1.0041(a), (b)(1). So, if

S.B. 10 went into effect, students would encounter the

same display, of the same size, with the same words, in a

conspicuous classroom location. Plaintiffs’ challenge thus

presents a “pure question of law” needing no “further

factual development” because the displays’ nature, style,

and effect will be the same wherever a student encounters

them. Braidwood Mgmt., 70 F.4th at 930.

Second, hardship. “[T]here is a fair amount of

overlap between Article III standing requirements and

the ripeness analysis.” Ibid. A concrete and impending

injury usually satisfies ripeness’s hardship prong. See, e.g.,

Chevron U.S.A., Inc. v. Traillour Oil Co., 987 F.2d 1138,

1153 (5th Cir. 1993) (“[T]he ripeness inquiry focuses on

whether an injury that has not yet occurred is sufficiently

likely to happen to justify judicial intervention.” (emphasis

added)). It does here: Plaintiffs have adequately alleged

injury, and thus hardship, because Texas requires both

school attendance and the Commandments’ display, which

their children are likely to encounter.

This conclusion is consistent with our en banc decision

in Roake, which held that a facial challenge to Louisiana’s

Ten Commandments statute was unripe. Roake En Banc,

37a

Appendix C

170 F.4th at 298-300. Louisiana’s statute differs from

Texas’s in three key ways. First, Louisiana requires

the “nature of the display” to “be determined by each

governing authority.” La. Stat. Ann. § 17:2124(B)(1)

(2024). Texas, by contrast, delegates no local discretion

for any of the display’s components. Second, Louisiana

specifies that local displays may (or may not) incorporate

other historical documents, such as “the Mayflower

Compact, the Declaration of Independence, and the

Northwest Ordinance.” Id. § 17:2124(B)(4). Texas, by

contrast, mandates that displays “include only” the

provided text of the Commandments. Tex. Educ. Code

A nn. § 1.0041(b)(1) (West 2025); see also id. § 1.0041(d)

(1)(B) (privately donated displays must “not contain any

additional content”). Third, the Louisiana law does not

specify where displays must appear, see Roake Panel, 141

F.4th at 630 & n.6, whereas Texas requires posting them

in “a conspicuous place” so they can be easily read. Tex.

Educ. Code A nn. § 1.0041(a) (West 2025). So, while the

Louisiana law lets local governing authorities shape the

displays’ critical contextual details, the Texas law settles

those details in the statute.

In sum, unlike Louisiana’s law, S.B. 10 establishes a

uniform display requirement we can evaluate as a matter

of law without further factual development. Plaintiffs’

challenge is therefore ripe.

IV. Establishment

Defendants argue that, in ruling S.B. 10 violates the

Establishment Clause, the district court erred in two main

respects. First, they contend the court applied a test from

38a

Appendix C

Stone v. Graham and Lemon v. Kurtzman—whether the

law has a “secular purpose”—which the Supreme Court

has since abrogated. Second, they contend the court’s

backup analysis was flawed. The court asked whether S.B.

10 fits within a tradition of posting the Commandments

in public schools. Wrong question, Defendants argue.

Following more recent precedent, the court should have

asked whether the Texas law has any elements of a

founding-era religious establishment.

Our analysis proceeds as follows. First, we address

whether the secular-purpose test from Stone and Lemon

remains good law. The answer is no: The Supreme Court

has explicitly abandoned that test, along with the rest of

Lemon and its offshoots, such that Stone is now an empty

vessel. Indeed, to say we must keep applying Stone (as do

Plaintiffs and our dissenting colleagues) would be to ignore

Lemon’s abrogation. Second, we consider what the proper

Establishment Clause analysis is today. The answer is that

courts now ask whether a challenged law bears hallmarks

of a founding-era establishment of religion. Finally, we

apply that analysis and conclude that displaying the Ten

Commandments in public-school classrooms bears no

resemblance to a historical establishment.

A. The Supreme Court has abrogated Lemon.

By targeting S.B. 10’s lack of a “secular purpose,”

Defendants contend the district court applied an analysis

that has been overruled by the Supreme Court. Not so,

counter Plaintiffs: The district court applied Stone, which

also involved a Ten Commandments display and which the

Supreme Court has not overruled by name. We agree with

39a

Appendix C

Defendants. Explaining why requires briefly discussing

the evolution of Establishment Clause jurisprudence.

Lemon’s Demise

In 1971, the Supreme Court decided Lemon v.

Kurtzman, which for decades would provide a framework

for analyzing the Establishment Clause. What came to be

known as the “Lemon test” asked (1) whether a law has “a

secular legislative purpose,” (2) whether its “principal or

primary effect . . . neither advances nor inhibits religion,”

and (3) whether it “foster[s] an excessive government

entanglement with religion.” Lemon, 403 U.S. at 612-13

(quotation omitted).

Lemon’s career was not a success. “’[I]nstead of

bringing clarity to’ the Supreme Court’s Establishment

Clause jurisprudence, ‘Lemon produced only chaos.’”

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

484, 490 (3d Cir. 2025) (alteration in original) (quoting

Shurtleff v. City of Boston, 596 U.S. 243, 277, 142 S. Ct.

1583, 212 L. Ed. 2d 621 (2022) (Gorsuch, J., concurring

in the judgment)), cert. denied, 146 S. Ct. 885, 223 L. Ed.

2d 274 (2025) (mem.). The test led to a “garble” of results,

with courts reaching conflicting decisions on whether, for

instance, governments could display nativity scenes and

menorahs, or whether a city seal could include a religious

symbol. 3 Famously, dueling Supreme Court decisions

3. Shurtleff, 596 U.S. at 278 & nn.1-3 (Gorsuch, J., concurring in

the judgment) (discussing Lynch v. Donnelly, 465 U.S. 668, 671-72,

104 S. Ct. 1355, 79 L. Ed. 2d 604 (1984) and County of Allegheny v.

ACLU, 492 U.S. 573, 578-79, 109 S. Ct. 3086, 106 L. Ed. 2d 472 (1989)

40a

Appendix C

allowed states to supply religious schools with books but

not maps, leading then-Senator Daniel Moynihan to quip,

“What about atlases?”4

Indeed, whether Lemon was still the law was a

mystery for years. The Court would deploy it in some

cases, while seeming to forget it in others. See, e.g.,

Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist.,

508 U.S. 384, 398-400, 113 S. Ct. 2141, 124 L. Ed. 2d 352

(1993) (Scalia, J., concurring in the judgment). 5 In 2022,

(nativity scenes); Skoros v. New York, 437 F.3d 1, 3-4 (2d Cir. 2006)

and Kaplan v. Burlington, 891 F.2d 1024, 1025-26, 1030-31 (2d Cir.

1989) (menorahs); Murray, 947 F.2d at 149 and Harris v. Zion, 927

F.2d 1401, 1402 (7th Cir. 1991) (city seals)).

4. Compare Bd. of Educ. of Cent. Sch. Dist. No. 1 v. Allen,

392 U.S. 236, 88 S. Ct. 1923, 20 L. Ed. 2d 1060 (1968), with Meek

v. Pittenger, 421 U.S. 349, 95 S. Ct. 1753, 44 L. Ed. 2d 217 (1975),

overruled by Mitchell v. Helms, 530 U.S. 793, 120 S. Ct. 2530, 147

L. Ed. 2d 660 (2000). See also Jeffrey Rosen, Lemon Law, The New

Republic (Mar. 28, 1993), https:// newrepublic.com/article/73764/

lemon-law [https://perma.cc/WU7M-E5RC].

5. See also Am. Legion, 588 U.S. at 49 (“In many cases, this

Court has either expressly declined to apply the test or has simply

ignored it.”). Others, including this court, have observed the same

thing. See Am. Humanist Ass’n v. McCarty, 851 F.3d 521, 525 (5th

Cir. 2017) (Smith, J.); Doe v. Duncanville Indep. Sch. Dist., 994 F.2d

160, 166 n.7 (5th Cir. 1993) (Smith, J.) (criticizing the “confusing

and confused Establishment Clause jurisprudence” under the

“tripartite Lemon analysis”); see also Gerard V. Bradley, The Death

and Resurrection of Establishment Doctrine, 61 Duq. L. Rev. 1, 1

(2023) (“[Secularism] is (was) the beating heart of Lemon and the

ground-norm of the church-state corpus it animated for decades.

It was incompatible with our history and traditions and current

41a

Appendix C

the Court finally buried the hatchet: it announced it had

“long ago abandoned Lemon.” Kennedy, 597 U.S. at 534.

Also “abandoned,” the Court explained, was Lemon’s

“offshoot,” known as the “endorsement test.” Ibid. A year

later, the Court confirmed Lemon had been “abrogated.”

Groff v. DeJoy, 600 U.S. 447, 460, 143 S. Ct. 2279, 216 L.

Ed. 2d 1041 (2023).

Our court has likewise recognized Lemon’s demise.

Following the Supreme Court’s direction, we held that

“[w]e do not . . . consider the Lemon test” because “[i]ts

long Night of the Living Dead is now over.” Freedom from

Religion Found., Inc. v. Mack, 49 F.4th 941, 954 n.20 (5th

Cir. 2022) (citations omitted).

To sum up: “Lemon and its progeny,” Kennedy, 597

U.S. at 534, have been “abandoned,” ibid., “abrogated,”

Groff, 600 U.S. at 460, and their reign “is now over,” Mack,

49 F.4th at 954 n.20. This means that, when analyzing

Establishment Clause claims, courts do not consider any

of the three Lemon prongs—whether a law has a secular

purpose, whether it advances or inhibits religion, and

whether it excessively entangles government and religion.

See Lemon, 403 U.S. at 612-13.

Without Lemon, Stone disappears.

How, then, did the district court justify applying

Lemon’s defunct secular-purpose test? Answer: it

practices.”); Carl H. Esbeck, The Lemon Test: Should It Be Retained,

Reformulated or Rejected?, 4 Notre Dame J.L. Ethics & Pub. Pol’y

513, 515-31 (1990).

42a

Appendix C

claimed to apply not Lemon but Stone. See Nathan, 795

F. Supp. 3d at 939, 942-43. The Roake district court and

the now-vacated Roake panel took the same view. See

Roake v. Brumley, 756 F. Supp. 3d 93, 116, 160-70 (M.D.

La. 2024), vacated, 170 F.4th 292 (5th Cir. 2026); Roake

Panel, 141 F.4th at 643-45. Plaintiffs continue to insist on

this distinction: “Stone, not Lemon.” See also Roake En

Banc, 170 F.4th at 302-07 (Dennis, J., dissenting). They

are mistaken.

To see why, just read Stone. It was a seven-paragraph

opinion issued in 1980, nine years after Lemon. Here’s the

entire second paragraph:

This Court has announced a three-part test for

determining whether a challenged state statute

is permissible under the Establishment Clause

of the United States Constitution:

“First, the statute must have a

secular legislative purpose; second,

its principal or primary effect must be

one that neither advances nor inhibits

religion . . . ; finally the statute must

not foster ‘an excessive government

entanglement with religion.’” Lemon

v. Kurtzman, 403 U.S. 602, 612-613,

91 S. Ct. 2105, 2111, 29 L. Ed. 2d 745

(1971) (citations omitted).

If a statute violates any of these three

principles, it must be struck down under

43a

Appendix C

the Establishment Clause. We conclude that

Kentucky’s statute requiring the posting of the

Ten Commandments in public schoolrooms had

no secular legislative purpose, and is therefore

unconstitutional.

Stone, 449 U.S. at 40-41. Unmistakably, Stone depended

entirely on Lemon and nothing but Lemon. Remove the

three-part Lemon test, and Stone’s reasoning vanishes.

It follows that Stone is one of Lemon’s “progeny” that

has been “abrogated.” Kennedy, 597 U.S. at 534; Groff,

600 U.S. at 460.

Evidently sensing this problem, the now-vacated

Roake panel tried to distance itself from Lemon by

dropping this cryptic footnote: “We do not undertake

this [secular-purpose] analysis to revive Lemon, but

only for the limited purpose of deciding whether Stone’s

facts and reasoning control.” 141 F.4th at 643 n.21. That

makes no sense. The panel applied Lemon’s first prong—if

that does not “revive Lemon,” what would? And Stone’s

“reasoning” is the Lemon test, full stop. So, what the

Roake panel denied it was doing (“reviving Lemon”) and

what it admitted it was doing (“deciding whether Stone’s

facts and reasoning control”) are the same thing.

The Roake panel also suggested that Stone relied on

other precedents besides Lemon—specifically, Abington

Township v. Schempp and Engel v. Vitale—and so, for

that reason, Stone somehow survives Lemon’s abrogation.

Roake Panel, 141 F.4th at 642; see also id. at 652-53

(Dennis, J., concurring) (similar). Not so. Again, read

44a

Appendix C

Stone. It relied on Schempp only to support its secularpurpose holding (Lemon’s first prong), see Stone, 449

U.S. at 41, and on Engel only to support the pedestrian

point that there was state action, id. at 42 & n.4. Those

passing cites cannot alter the fact that Stone was Lemon

all the way down. If there were any doubt, here is Stone’s

concluding sentence: “We conclude that § 158.178 (1980)

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

and thus the Establishment Clause of the Constitution.”

Id. at 42-43.

Courts cannot apply Stone without applying

bad law.

Plaintiffs contend Stone and its secular-purpose test

are still good law, notwithstanding Lemon’s abrogation.

We disagree.

First, Plaintiffs argue the Supreme Court has

not overruled Stone by name. The Supreme Court’s

prerogative to overrule its own precedent, Rodriguez de

Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484,

109 S. Ct. 1917, 104 L. Ed. 2d 526 (1989), is a principle we

scrupulously honor.6 But Plaintiffs misunderstand how

the principle applies here. Stone does not merely “rest

on reasons rejected in some other line of decisions,” ibid.

6. See, e.g., United States v. Vargas, 74 F.4th 673, 683 (5th Cir.

2023) (en banc) (“Our job, as an inferior court, is to adhere strictly

to Supreme Court precedent, whether or not we think a precedent’s

best days are behind it.”); Ass’n of Club Execs. of Dall., Inc. v. City

of Dallas, 83 F.4th 958, 965 (5th Cir. 2023) (“[W]hether to overrule

or modify [a case] is the High Court’s business, not ours.”).

45a

Appendix C

(emphasis added); instead, it is part of Lemon’s “progeny”

that the Supreme Court has affirmatively “abandoned”

and “abrogated.” Kennedy, 597 U.S. at 534; Groff, 600

U.S. at 460. With Lemon gone, there is nothing left of

Stone to apply.

Plaintiffs miss the sea change caused by Lemon’s

abrogation. Over fifty years ago, Lemon unveiled “a grand

unified theory” for the Establishment Clause that would

cut across all kinds of cases. See Kennedy, 597 U.S. at

534 (quotation omitted).7 For that reason, the Court did

not merely overrule Lemon, but also its “progeny” and

its “offshoot[s]” such as the reasonable-observer test.

Ibid. And, to make its intentions perfectly clear, the

Court confirmed that a strikingly different historical

approach would govern all Establishment Clause cases

going forward. See id. at 535-36; see also infra Part IV.B.

(discussing historical approach). The notion that we must

nonetheless continue to apply any part of Lemon flies in

the face of those explicit directives.

If Plaintiffs’ view prevailed, we would be applying

Lemon’s dead letter far into the future. For instance,

Kennedy involved a coach’s prayer after a football game.

7. See, e.g., Sch. Dist. of City of Grand Rapids v. Ball, 473

U.S. 373, 105 S. Ct. 3216, 87 L. Ed. 2d 267 (1985) (publicly funded

remedial instruction in religious schools), overruled by Agostini

v. Felton, 521 U.S. 203, 117 S. Ct. 1997, 138 L. Ed. 2d 391 (1997);

Meek, 421 U.S. 349 (publicly provided guidance, speech, and hearing

services at parochial schools); Edwards v. Aguillard, 482 U.S. 578,

107 S. Ct. 2573, 96 L. Ed. 2d 510 (1987) (teaching of creationism in

public schools).

46a

Appendix C

Id. at 514-15. Presumably, all would concede that Lemon

no longer applies in football-game-prayer cases. See Santa

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

147 L. Ed. 2d 295 (2000) (addressing prayer broadcast

before high-school football games). What about other

cases? Lemon applied far and wide. 8 Kennedy did not

tick off every one of those cases and denounce their use

of Lemon. Must we keep applying the abrogated Lemon

test in each one until the Supreme Court tells us not to?

To ask the question is to answer it.

Furthermore, Kennedy’s treatment of Establishment

Clause precedent shows no intent to preserve Lemon.

Quite the contrary. For instance, Kennedy discussed

Santa Fe, 530 U.S. 290, the football-game-prayer case.

597 U.S. at 541-42. Although Santa Fe cited Lemon,

Kennedy explicitly frames it as a coercion case and says

nothing about Lemon. Kennedy, 597 U.S. at 541-42; see

also id. at 570 n.4 (Sotomayor , J., dissenting) (noting

majority “recast[s] . . . Santa Fe as solely concerning

coercion”). Kennedy also discussed Lee v. Weisman,

which cited Lemon but did not apply it. See Lee, 505 U.S.

at 644 (Scalia, J., dissenting) (explaining the majority

“demonstrate[d] the irrelevance of Lemon by essentially

ignoring it”). And, like Santa Fe, Kennedy discussed Lee

8. See, e.g., County of Allegheny, 492 U.S. 573 (nativity scene

on public property); Wallace v. Jaffree, 472 U.S. 38, 105 S. Ct. 2479,

86 L. Ed. 2d 29 (1985) (moment of silence in public schools); Roemer

v. Bd. of Pub. Works of Md., 426 U.S. 736, 96 S. Ct. 2337, 49 L. Ed.

2d 179 (1976) (nonsectarian subsidy program to higher learning

institutions); Comm. for Pub. Educ. & Religious Liberty v. Nyquist,

413 U.S. 756, 93 S. Ct. 2955, 37 L. Ed. 2d 948 (1973) (maintenance

and repair grants for religious schools).

47a

Appendix C

as a case about “problematically coercive” school prayer.

Kennedy, 597 U.S. at 541.9

In short, there is no plausible way to read Kennedy

as somehow preserving Lemon for certain cases. As

discussed, Kennedy definitively announced the Lemon

test had been “abandoned.” Id. at 534. That was the last

nail in Lemon’s coffin. Because we do not have the option

of ignoring the Supreme Court’s express directives, we

cannot continue applying Lemon.

Finally, Plaintiffs argue that Lemon’s abrogation does

not affect Stone because the Supreme Court separately

reaffirmed Stone in two 2005 decisions, McCreary County

v. ACLU and Van Orden v. Perry. See McCreary County

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

(2005); Van Orden v. Perry, 545 U.S. 677, 125 S. Ct. 2854,

162 L. Ed. 2d 607 (2005). We again disagree.

Those cases addressed Establishment Clause

challenges to a Ten Commandments display in a Kentucky

courthouse (McCreary) and a Ten Commandments

monument at the Texas Capitol (Van Orden). A splintered

Court invalidated the Kentucky display, McCreary, 545

U.S. at 881, but upheld the Texas monument, Van Orden,

545 U.S. at 692. McCreary merely rehearsed Stone’s

9. Even less can be said for Lamb’s Chapel and Widmar v.

Vincent, which Kennedy cited in passing for points unrelated to

Lemon. See Kennedy, 597 U.S. at 523 (citing Widmar to show

that free speech provides “overlapping protection” for religious

expression); id. at 543 (citing Lamb’s Chapel and Widmar for

proposition that “phantom constitutional violations” do not justify

infringing free speech).

48a

Appendix C

application of Lemon’s secular-purpose prong, see 545

U.S. at 859-69, and declined to abandon that test, see id. at

861-63. The controlling Van Orden opinion distinguished

Stone because the display there was in a public school, not

at a state capitol. See Van Orden, 545 U.S. at 703 (Breyer,

J., concurring in the judgment).10

Neither decision has any effect on our analysis here.

McCreary confirmed that Stone applied Lemon’s secularpurpose prong, and neither McCreary nor Van Orden

suggested that Stone had any other basis. See McCreary,

545 U.S. at 859 (explaining “Stone found a predominantly

religious purpose in the government’s posting of the

Commandments”). And, most importantly, both cases

were decided years before Kennedy announced that the

Lemon test was abrogated.11

***

After decades of confusion, the Supreme Court finally

confirmed Lemon’s demise. Plaintiffs ignore the obituary.

10. “Justice Breyer’s concurrence is the controlling opinion

in Van Orden.” Staley v. Harris County, 485 F.3d 305, 308 n.1 (5th

Cir. 2007) (en banc).

11. Nor did Chief Justice Rehnquist ’s plurality opinion in

Van Orden somehow reimagine Stone as a “coercion” decision. To

the contrary, Rehnquist ’s separate opinion confirms that Stone was

based on Lemon’s purpose prong. See 545 U.S. at 690 (Rehnquist,

C.J.) (plurality opinion) (“In the classroom context, we found that the

Kentucky statute had an improper and plainly religious purpose.”

(citing Stone, 449 U.S. at 41)). In any event, a nonprecedential fourJustice plurality cannot somehow transform Stone from a Lemonbased decision into a coercion case.

49a

Appendix C

Under the guise of applying Stone, they would have us

exhume Lemon and parade its corpse around the Federal

Reporter. That we cannot do.

We agree with Defendants that the district court

erred in applying Lemon’s abrogated secular-purpose

test.

B. Cour ts now analyze Establishment Clause

challenges in light of founding-era religious

establishments.

In addition to discarding the Lemon test, Kennedy

instructed courts how to analyze Establishment Clause

claims going forward.

The Clause “must be interpreted by reference to

historical practices and understandings,” using an

interpretation that “faithfully reflects the understanding

of the Founding Fathers” and “focuses on original

meaning and history.” Kennedy, 597 U.S. at 535-36

(citation modified). The analysis looks to the historical

“hallmarks of religious establishments,” such as legal

compulsion to “‘attend church’” or “engage in ‘a formal

religious exercise.’” Id. at 537 (quoting Zorach v. Clauson,

343 U.S. 306, 314, 72 S. Ct. 679, 96 L. Ed. 954 (1952); Lee,

505 U.S. at 589).12 As two sister circuits have explained,

12. See also Kennedy, 597 U.S. at 537 & n.5 (discussing

“coercion along these lines,” id. at 537, and noting “certain other

historical hallmarks of an established religion,” id. at 537 n.5);

Shurtleff, 596 U.S. at 277 (G orsuch, J., concurring in the judgment);

1 A nnals Of Cong. 730-31 (1789) (Madison); Michael W. McConnell,

Establishment and Disestablishment at the Founding, Part I:

50a

Appendix C

Kennedy’s analysis distills to this inquiry: Have plaintiffs

“prov[en] a set of facts that would have historically been

understood as an establishment of religion”? Hilsenrath,

136 F.4th at 491 n.54 (quoting Firewalker-Fields v. Lee,

58 F.4th 104, 122 n.7 (4th Cir. 2023)).

In the following sections, we flesh out the historical

analysis Kennedy demands. We then apply it to S.B. 10.

The Text of the Establishment Clause

The First Amendment states in relevant part that

“Congress shall make no law respecting an establishment

of religion, or prohibiting the free exercise thereof.” U.S.

Const. amend. I.

The key phrase—”an establishment of religion”—

was readily understandable to founding-era citizens. See

District of Columbia v. Heller, 554 U.S. 570, 576-77, 128

S. Ct. 2783, 171 L. Ed. 2d 637 (2008) (relying on a phrase’s

“[n]ormal meaning . . . known to ordinary citizens in the

founding generation”). The reason is simple. At the time,

establishments were “a familiar institution.” McConnell,

Establishment, supra note 12, at 2107.13 Someone on

Establishment of Religion, 44 Wm. & M ary L. Rev. 2105, 2144-46

(2003) [hereinafter McConnell, Establishment].

13. See generally J oh n Wi t t e , Jr ., J oel A. Nichols &

Richard W. Garnett, Religion A nd The A merican Constitutional

Experiment 9-34 (5th ed. 2022) [hereinafter Witte, Religion]; A khil

Reed A mar, The Bill Of Rights: Creation A nd Reconstruction

32-33 (1998) [hereinafter A mar, Bill Of Rights]; Leonard W. Levy,

The Establishment Clause: Religion A nd The First A mendment

5, 11 (2d ed. 1994) [hereinafter Levy, Establishment Clause].

51a

Appendix C

the streets of 1789 Boston, reading that phrase, would

have instantly thought of the Church of England, the

colonial established churches, or the current state

establishments—in other words, a polity’s official church

or religion. Ibid.

This is what founding-era Americans meant by

“establishments of religion.” That meaning is reflected in

contemporary dictionaries. For instance, Samuel Johnson

referred to a church’s being “established in all its forms

by an ordinance of the lords and commons.” Establish,

Samuel Johnson, A Dictionary Of The English Language

(4th ed. 1773) [https://johnsonsdictionaryonline.com/1773/

establish_va].14 It is also how people used the term. For

instance, John Leland, the 18th century Baptist preacher—

pondering “[w]hat were, and still are the causes that ever

there should be a state establishment of religion”—

answered: “over-fondness for a particular system or sect.

. . . gave rise to the first human establishment of religion,

by Constantine the Great.” John Leland, The Rights

Of Conscience Inalienable, A nd Therefore Religious

Opinions Not Cognizable By Law 16 (New-London, T.

Green & Son 1791).15

14. See also Establishment, Noa h W ebst er , A m erica n

Dictionary Of The English Language 594 (1828) [https://heinonline.

org/HOL/P?h=hein.lbr/ adeniex0001&i=684] (“The episcopal form

of religion, so called in England.”).

15. See generally Stephanie H. Barclay, Brady Earley &

Annika Boone, Original Meaning and the Establishment Clause:

A Corpus Linguistics Analysis, 61 Ariz. L. Rev. 505, 539-45

(2019) (discussing founding-era uses of “establishment of religion”)

[hereinafter Barclay, Original Meaning]; see also, e.g., Henry J.

Caner, A Candid Examination Of Dr. M ayhew ’s Observations On

52a

Appendix C

At one level, then, the Clause’s text is straightforward.

It bars Congress16 from enacting laws regarding17 a legal18

The Charter A nd Conduct Of The Society For The Propagation Of

The G ospel In Foreign Parts 38 (1763) (“[T]he Church of England

is beyond controversy established in all his Majesty’s colonies and

plantations . . . .”).

16. The Supreme Court has held that the Clause also applies

to the States. See Everson v. Bd. of Educ. of Ewing Twp., 330 U.S.

1, 8, 67 S. Ct. 504, 91 L. Ed. 711 (1947); Murdock v. Pennsylvania,

319 U.S. 105, 108, 63 S. Ct. 870, 87 L. Ed. 1292 (1943). We therefore

need not enter the long-running debate on whether incorporating

the Clause made sense considering its central purpose of preventing

federal interference with state establishments. See, e.g., Elk Grove

Unified Sch. Dist. v. Newdow, 542 U.S. 1, 49-51, 124 S. Ct. 2301, 159

L. Ed. 2d 98 (2004) (Thomas, J., concurring in the judgment); Zelman

v. Simmons-Harris, 536 U.S. 639, 679, 122 S. Ct. 2460, 153 L. Ed.

2d 604 & n.4 (2002) (Thomas, J., concurring); see also A mar, Bill

Of Rights, supra note 13, at 32-42; Steven D. Smith, Foreordained

Failure: The Quest for a Constitutional Principle of Religious

Freedom 17-27 (1995).

17. That is the most straightforward reading of the term

“respecting.” See Respecting, Noah Webster, A merican Dictionary

Of The English Language 697 (1830) (“[r]egarding; having regard

to; relating to”). Scholars disagree about how to read “respecting.”

See, e.g., Carl H. Esbeck, The Establishment Clause: Its Original

Public Meaning and What We Can Learn from the Plain Text, 22

Federalist Soc’Y Rev. 26, 31-39 & n.42 (2021) [hereinafter Esbeck,

Establishment Clause]; Witte, Religion, supra note 13, at 114-21.

We need not pick sides in those somewhat esoteric debates. Even if

“respecting” means something slightly broader than “regarding”

(which we do not decide), it would not affect the outcome. See infra

Part IV.C (concluding Ten Commandments display has no element

of a historical establishment).

18. When the Constitution elsewhere uses “establish” or

“establishment,” the term refers to creating an institution by law.

53a

Appendix C

institution well known in the founding era. That sets the

parameters of our inquiry. If a modern law is challenged

under the Establishment Clause, courts must test that law

against what the founding generation would have regarded

as an establishment of religion. See Kennedy, 597 U.S. at

537; Hilsenrath, 136 F.4th at 491 n.54; Firewalker-Fields,

58 F.4th at 122 n.7. That is a familiar task. Courts often

decide whether modern practices fall within the original

public meaning of constitutional phrases—for instance,

“search and seizure,” “keep and bear arms,” “Recess of

the Senate,” or “Officers of the United States.”19

See U.S. Const. pmbl. (“We the People . . . in Order to . . . establish

Justice . . . do ordain and establish this Constitution for the United

States of America.”); id. art. II, § 2 (“Appointments . . . which shall

be established by Law”); id. art. III, § 1 (“such inferior courts as

the Congress may . . . ordain and establish”); id. art. VII (“The

Ratification of the Conventions of nine States, shall be sufficient

for the Establishment of this Constitution between the States so

ratifying the Same.” (emphases added)); see also Marc O. DeGirolami,

Establishment As Tradition, 133 Yale L.J.F. 372, 377-82 (2023)

(discussing Constitution’s uses of “establishment” and stating that

“’an establishment’ refers to a concrete legal or political institution

and the laws and practices appurtenant to it”).

19. See, e.g., United States v. Jones, 565 U.S. 400, 404-05, 132 S.

Ct. 945, 181 L. Ed. 2d 911 (2012) (asking whether police’s “physically

occup[ying] private property for the purpose of obtaining information.

. . . would have been considered a ‘search’ within the meaning of the

Fourth Amendment when it was adopted”); Heller, 554 U.S. at 573,

576-620 (asking whether “prohibition on the possession of usable

handguns in the home” violated the “individual right to keep and

bear arms” as understood by “ordinary citizens in the founding

generation”); NLRB v. Noel Canning, 573 U.S. 513, 526-38, 57, 134 S.

Ct. 2550, 189 L. Ed. 2d 538 (2014) (original meaning of “Recess of the

Senate”); Buckley v. Valeo, 424 U.S. 1, 124-31, 96 S. Ct. 612, 46 L. Ed.

2d 659 (1976) (original meaning of “Officers of the United States”).

54a

Appendix C

Admittedly, though, our task in this case has added

complexity. Like certain phrases in the Constitution, 20

an “establishment of religion” denotes a relic of the

past: the last state establishment was dismantled in

1833. McConnell, Establishment, supra note 12, at 2126

(discussing Massachusetts disestablishment). “It has

been so long—about [190] years—since any state in the

United States has had an established church that we have

almost forgotten what it is.” Id. at 2107. 21 Accordingly,

in the following sections we consider historical evidence

from the founding era to fill out the contours of the phrase

“establishment of religion.” See, e.g., Heller, 554 U.S. at

579-605.

The Church of England

For the founding era, the paradigm religious

establishment was the Church of England. While only

a sketch is possible here, the founding generation well

understood the components of this establishment.

20. See, e.g., U.S. Const. art. I, § 8, cl. 11 (empowering Congress

to “grant Letters of Marque and Reprisal”); id. art. I, § 9, cl. 3

(prohibiting “Bill[s] of Attainder”); id. art. III, § 3, cl. 2 (providing

“no Attainder of Treason shall work Corruption of Blood”).

21. See also Nathan S. Chapman & Michael W. Mcconnell,

Agreeing To Disagree: How The Establishment Clause Protects

R eligious D i v ersit y A nd F reedom O f C onscience 2 (2023)

[hereinafter Chapman & Mcconnell, Agreeing To Disagree]. See

generally D isestablishment A nd R eligious D issent : C hurch State Relations In The New A merican States (1776-1833) (Carl H.

Esbeck & Jonathan J. Den Hartog eds. 2019) [Hereinafter State

Disestablishments].

55a

Appendix C

The “Anglican establishment” emerged in the early

sixteenth century when Parliament renounced papal

authority and declared King Henry VIII “the only

supreme head in earth of the Church of England.” Act

of Supremacy 1534, 26 Hen. 8, c. 1 (Eng.). As part of his

“spiritual authority,” the king was empowered to reform

and redress all “errors, heresies, [and] abuses” to increase

“virtue in Christ’s religion” for the “pleasure of Almighty

God.” Ibid. In effect, the Crown gained absolute civil

authority

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