In Roake v. Brumley, (5th Cir., Feb. 20, 2026), the U.S. 5th Circuit Court of Appeals sitting en banc by a vote of 11-7 vacated on jurisdictional grounds a preliminary injunction that had barred schools from complying with a Louisiana law mandating the posting of the Ten Commandments in every public-school classroom. (See prior posting.) The majority held that the case was not ripe, saying in part:
Asking us to declare—here and now, and in the abstract—that every possible H.B. 71 display would violate the Establishment Clause would require precisely what [prior Supreme Court precedent] ... forbids: the substitution of speculation for adjudication. It would oblige us to hypothesize an open-ended range of possible classroom displays and then assess each under a context-sensitive standard that depends on facts not yet developed and, indeed, not yet knowable. That exercise exceeds the judicial function. It is not judging; it is guessing. And because it rests on conjecture rather than a concrete factual record, it does not cure the ripeness defect—it compounds it....
Judge Ho filed a concurring opinion, saying in part:
Plaintiffs contend that their constitutional objection to the Louisiana Ten Commandments law “may properly begin and end” with Stone v. Graham, 449 U.S. 39 (1980).
That’s telling, because Stone turns entirely on Lemon v. Kurtzman, 403 U.S. 602 (1971)—and everyone agrees that Lemon is no longer good law after Kennedy v. Bremerton School District, 597 U.S. 507, 534 (2022)....
Later Supreme Court opinions have further affirmed that passive religious displays are not coercive....
Plaintiffs present no historical evidence that remotely suggests that our Founders would have regarded a passive display of the Ten Commandments as an impermissible “establishment of religion.” ...
Judge Dennis, joined by Judges Graves, Higginson, Douglas and Ramirez, filed a dissenting opinion, saying in part:
Here, the legislative record demonstrates that a religious objective dominated. Sponsors repeatedly invoked teaching children “what God commands,” lamented the decline of Christianity, and openly framed opposition to H.B. 71 as an “attack on Christianity.” Another co-sponsor touted the law as a religious counterbalance to secular education....
... Stone remains controlling because Louisiana vastly overstates Kennedy’s significance. Kennedy repudiated only the endorsement test—an offshoot of Lemon’s second prong—and left intact the broader framework of Establishment Clause doctrine: the requirement of a secular legislative purpose, the prohibition on policies whose primary effect advances religion, and the concern about excessive entanglement between church and state....
Judge Haynes filed a brief dissenting opinion.
Judge Higginson, joined by Judges Dennis, Graves, Douglas and Ramirez filed a dissenting opinion, saying in part:
We know from Louisiana lawmakers the chosen scriptural text was not happenstance. The legislators had definitive religious motivation when they selected a Protestant version of the Decalogue to display....
... Jewish plaintiffs and organizations voice that it violates their faith to make Jewish children stare at a Protestant “misappropriat[ion]” of their most sacred text....
Judge Ramirez, joined by Judges Stewart, Dennis, Graves, Higginson and Douglas, filed a dissenting opinion, saying in part:
Because H.B. 71 provides sufficient information about the mandatory classroom religious displays, and requires no other materials to be displayed, “no additional factual development” is required to determine the statute’s facial invalidity....
Louisiana’s argument that the court must know what other materials may accompany each Ten Commandments poster to evaluate H.B. 71’s constitutionality also ignores the nature of Plaintiffs’ facial claims—that H.B. 71’s minimum requirements render it unconstitutional in all applications.
Louisiana Illuminator reports on the decision.
