In Roake v. Brumley, (5th Cir., June 20, 2025), the U.S. 5th Circuit Court of Appeals affirmed a district court's grant of a preliminary injunction against enforcement of a Louisiana statute that requires public schools to display the Ten Commandments in every classroom. In a lengty opinion the appellate court found that plaintiffs had standing to challenge the statute and that plaintiffs had shown a substantial likelihood of succcess on the merits of their Establishment Clause claim. The court said in part:
The precedents of the Supreme Court and this court establish that, in an Establishment Clause case, a plaintiff can generally satisfy the injury-infact element of standing when he experiences—or certainly will experience—unwanted exposure to government-sponsored religious displays or exercises in the course of his regular activities....
Although the Supreme Court set aside the Lemon test in Kennedy [v. Bremerton School District],... Kennedy did not overrule Stone [v. Graham]. Kennedy does not mention Stone or purport to overrule the decisions (other than Lemon) on which Stone relies, i.e., Schempp or Engel. Stone remains good law andtherefore controls....
An H.B. 71 display that meets the statute’s minimum requirements is materially identical to the displays challenged in Stone....
It is also unclear how H.B. 71 ensures that students in Louisiana public schools “understand and appreciate the foundational documents of [its] stateand national government” when it makes displaying those “foundational” documents optional, and does not require that they also be printed in a large, easily readable font.... When the Ten Commandments must be posted prominently and legibly, while the other “contextual” materials need not be visible at all, the disparity lays bare the pretext....
... [T]he question before us is whether the permanent posting of the Ten Commandments in public school classrooms fits within, or is consistent with, a broader tradition of using the Ten Commandments in public education....
Plaintiffs presented the expert testimony of Dr. Steven Green, a religious and constitutional legal historian. Dr. Green testified that the public school system did not exist at the founding; rather, public education originated sometime around the late 1820s. Dr. Green also found no evidence that the Ten Commandments were permanently displayed in early American public schools. He testified that no state enacted a law allowing the display of the Ten Commandments in public schools until North Dakota did so in 1927, and that a court later stuck down the statute....
Judge Dennis filed a concurring opinion, saying in part:
I join the majority opinion in full. I write separately to offer two additional bases for affirming the district court’s judgment. First, the Plaintiffs have standing under settled Supreme Court precedents recognizing “offended observer” standing in Establishment Clause cases.... Second, Louisiana vastly overstates both the holding and reach of Kennedy v. Bremerton School District.... That decision did not undermine—much less overrule—Stone v. Graham.... Nor did it eliminate the component parts of Lemon v. Kurtzman....
Axios reports on the decision.
