Federal appeals court finds Louisiana’s Ten Commandments law unconstitutional as Texas enacts a similar measure

Louisiana’s plan to mandate the posting of the Ten Commandments in every public school classroom has again met a constitutional roadblock.

In Roake v. Brumley, a unanimous panel of the 5th U.S. Circuit Court of Appeals halted Louisiana’s troubling law requiring the posting. In doing so, the appeals court affirmed a district court’s preliminary injunction. Both courts agreed that the law mandating the posting – known as “HB 71” – is facially unconstitutional under U.S. Supreme Court precedent that remains directly on point.

BJC filed a brief with the appeals court emphasizing that under HB 71, students “will be confronted with the State’s religious instruction every minute of every day and cannot ‘opt out’ from this pervasive messaging.”

The appeals court opinion echoed BJC’s concern, underscoring the constitutional dangers of that constant pressure, especially for grade-school children:

[I]f H.B. 71 goes into effect, Students will be subjected to unwelcome displays of the Ten Commandments for the entirety of their public school education. There is no opt-out option. Plaintiffs … allege that Students “will be pressured to observe, meditate on, venerate, and follow this scripture and to suppress expression of their own religious beliefs and backgrounds at school.” Indeed, the Supreme Court has recognized that “there are heightened concerns with protecting freedom of conscience from subtle coercive pressure in the elementary and secondary public schools.”

Most importantly, the 5th Circuit Court explained, this matter has already been decided by the U.S. Supreme Court in a 1980 case, Stone v. Graham. There, the Supreme Court invalidated a similar law requiring Ten Commandments postings in every Kentucky classroom – finding there was no secular legislative purpose to the law under the Court’s “Lemon” test – and that the required posters were not integrated into a curriculum and thus did not serve any educational purpose. Here, Louisiana argued that because the Supreme Court has recently abrogated the Lemon test, that Stone is no longer controlling. The 5th Circuit panel rejected this argument:

Although the Supreme Court set aside the Lemon test in Kennedy, Kennedy did not overrule Stone. Kennedy does not mention Stone or purport to overrule the decisions (other than Lemon) on which Stone relies. Stone remains good law… Under Stone, H.B. 71 is plainly unconstitutional.

The 5th Circuit’s ruling here in is an important, much-needed victory for Establishment Clause principles in the public school context, where advocates of Christian nationalism have sought to introduce more and more Christian symbols and ideals through state legislation. Louisiana was the first state – but not the last – to enact a Ten Commandments mandate for every classroom, testing whether Stone v. Graham was still intact. Earlier this month, Texas followed suit after Gov. Greg Abbott signed SB10, which likewise requires the Ten Commandments to be posted in every public school classroom in his state.

Back in March, BJC mobilized faith leaders in Texas against SB10, writing a joint letter to legislators reminding them that “[t]he responsibility for religious education belongs to families, houses of worship, and other religious institutions — not the government.”