The U.S. Court of Appeals for the Fifth Circuit sat en banc Tuesday to hear oral arguments in two consolidated cases that could reshape how courts analyze religious displays in public schools following a fundamental shift in establishment clause jurisprudence.
The cases, *Roake v. Brumley* and *Nathan v. Alamo Heights Independent School District*, challenge state laws requiring the Ten Commandments be displayed in public school classrooms. *Roake* involves Louisiana's House Bill 71, while *Nathan* challenges Texas' Senate Bill 10.
The resolution of these cases will depend significantly on how the Fifth Circuit applies the Supreme Court's reasoning in *Kennedy v. Bremerton School District* to religious displays in educational settings. The *Kennedy* decision fundamentally reoriented establishment clause analysis under the First Amendment, abandoning the long-criticized three-prong Lemon test.
Under the Lemon test, government action had to meet three requirements: have a secular purpose, have a primary effect that neither advances nor inhibits religion, and avoid excessive entanglement with religion. The *Kennedy* court replaced this framework with an approach grounded in "analysis focused on original meaning and history."
The central question before the Fifth Circuit is what this shift means for religious displays in public schools and whether the Supreme Court's 1980 decision in *Stone v. Graham*, which struck down a similar Ten Commandments requirement in Kentucky, remains controlling precedent.
Four specific questions emerged as central during oral arguments and in the parties' briefing, according to analysis of the proceedings.
The challengers' primary argument centers on the continued validity of *Stone v. Graham*. They contend that *Stone* struck down a virtually identical Kentucky statute requiring Ten Commandments displays in public school classrooms. Until the Supreme Court explicitly overrules *Stone*, they argue, lower courts remain bound to follow it.
However, this argument appears to misunderstand both *Stone*'s scope and *Kennedy*'s impact on establishment clause jurisprudence. The analysis suggests that if *Stone* had announced a categorical rule that all Ten Commandments displays in public schools are unconstitutional, lower courts would face genuine tension between following that bright-line holding and applying *Kennedy*'s new historical framework.
But *Stone* did not establish such a categorical prohibition. Rather, *Stone* held that the specific Kentucky law violated the establishment clause under the circumstances presented at that time.
The distinction is crucial because it allows courts to analyze new Ten Commandments display requirements under *Kennedy*'s historical approach rather than being bound by *Stone*'s application of the now-abandoned Lemon test.
The cases present the first major test of how *Kennedy*'s emphasis on "historical hallmarks of established religion" applies to religious displays in educational settings. The Supreme Court's shift toward historical analysis represents a significant departure from decades of establishment clause jurisprudence.
Louisiana's House Bill 71 and Texas' Senate Bill 10 both require Ten Commandments displays in public school classrooms, but the specific requirements and contexts may differ from the Kentucky law at issue in *Stone*. These differences could prove significant under *Kennedy*'s fact-specific historical analysis.
The Fifth Circuit's decision sitting en banc indicates the court recognizes the importance and complexity of these issues. En banc hearings, involving all active judges rather than a three-judge panel, are reserved for cases of exceptional importance or those requiring resolution of conflicting precedent.
The outcome of these consolidated cases could have far-reaching implications for religious expression in public schools across the Fifth Circuit's jurisdiction, which includes Louisiana, Texas, and Mississippi. The circuit's interpretation of *Kennedy*'s historical framework may also influence how other courts approach similar establishment clause challenges.
Legal observers note that the cases arrive at a time of increased attention to religious liberty issues in educational settings. The Supreme Court's recent decisions have generally favored accommodating religious expression in public institutions, suggesting a potentially receptive environment for defending these display requirements.
The Fifth Circuit's eventual decision will likely address fundamental questions about the relationship between government and religion in public education. The court must determine whether requiring Ten Commandments displays constitutes an impermissible establishment of religion or falls within acceptable bounds of acknowledging America's religious heritage.
Given the significance of these issues and the Supreme Court's recent emphasis on historical analysis in establishment clause cases, the Fifth Circuit's decision may ultimately face Supreme Court review regardless of the outcome.
The cases represent a critical juncture in establishment clause jurisprudence, testing how lower courts will implement the Supreme Court's directive to focus on "original meaning and history" rather than the previously dominant Lemon test framework. The Fifth Circuit's analysis and reasoning will provide important guidance for future religious display cases across the federal court system.