“Stone Still Stands” – Fifth Circuit Affirms the Ongoing Prohibition against Permanent Religious Displays in Public-School Classrooms (Roake v. Brumley)

1. Introduction

Roake v. Brumley is the first post-Kennedy v. Bremerton appellate decision squarely addressing whether a state may mandate permanent displays of the Ten Commandments in public-school classrooms. In June 2024 Louisiana enacted House Bill 71 (H.B. 71), ordering every public elementary, middle, and high-school classroom to exhibit a poster or framed copy of a specific Protestant version of the Ten Commandments by 1 January 2025. A multi-faith coalition of parents and students sued numerous state officials and local school boards, alleging Establishment Clause and Free Exercise violations and seeking preliminary injunctive relief. The district court granted the injunction; the State appealed.

On 20 June 2025, the United States Court of Appeals for the Fifth Circuit (5th Cir.) affirmed the injunction and, in doing so, announced several clarifications of Establishment-Clause doctrine in the post-Kennedy landscape:

1. Stone v. Graham (1980) remains binding precedent and directly controls statutes like H.B. 71.
2. “Offended-observer” or exposure standing survives for students and parents confronted with mandatory religious displays in schools.
3. Permanent Ten-Commandments postings in classrooms lack a legitimate historical analogue under the history-and-tradition method endorsed in Kennedy.
4. Ex parte Young suits remain available against state educational officials who possess even a “scintilla of enforcement” authority.

2. Summary of the Judgment

• The panel (Judges Dennis, Haynes, and Ramirez, opinion by Judge Ramirez) held that the district court correctly:
  • exercised subject-matter jurisdiction (ripeness and standing established);
  • rejected sovereign-immunity defenses under Ex parte Young;
  • concluded that plaintiffs are substantially likely to prevail on their Establishment Clause claim under both Stone v. Graham and the post-Kennedy “history & tradition” test; and
  • balanced the remaining injunction factors in plaintiffs’ favor.
• The court expressly disclaimed reliance on the now-abandoned Lemon “endorsement” test but held that Stone, although initially decided using Lemon, remains good law.
• The panel rejected the State’s invitation to repudiate “offended-observer” standing, pointing to Supreme Court authorities such as Schempp (1963) and Lee v. Weisman (1992).
• The preliminary injunction, including a notice requirement to all Louisiana public schools, was affirmed in full.

3. Analysis

3.1 Precedents Cited and Their Influence

The panel methodically showed how each authority either supported or failed to rescue H.B. 71. Stone was found “materially indistinguishable”: both statutes required prominent, denominational posters in every classroom and provided a token “context statement.” Van Orden was inapposite because it involved a passive display on Capitol grounds, not a captive-audience school environment. The panel treated Kennedy as limiting Lemon’s endorsement test, but not as displacing Stone or the secular-purpose requirement inherited from earlier cases like Schempp.

3.2 Court’s Legal Reasoning

1. Jurisdictional Gates
   Ripeness: The statute is self-executing and details the exact text, timing, location, and appearance of the display; no further facts were needed.
   Standing: Daily mandatory exposure constitutes a concrete, imminent injury. The State’s attempt to abolish “offended-observer” standing conflicted with binding Supreme Court precedent.
   Sovereign Immunity: Both the Superintendent and BESE members must promulgate and enforce rules; that “scintilla of enforcement” satisfies Ex parte Young.
2. Merits – Establishment Clause
   • Stone Control: Because the two statutes are “virtually identical,” Stone dictates invalidation.
   • Kennedy Framework: Even if Stone were set aside, the State failed to identify a founding-era or 19th-century tradition of permanent Ten-Commandments postings in public classrooms. Expert historian testimony went unrebutted.
   • Secular-Purpose Sham: Legislative debates revealed explicit evangelical motives (“teach what God says is right”). Optional inclusion of founding documents while mandating the Commandments underscored the pretext.
3. Injunction Factors
   • Likelihood of Success – Satisfied per above.
   • Irreparable Harm – Loss of First-Amendment rights even briefly is irreparable (Elrod).
   • Balance & Public Interest – Protecting constitutional freedoms outweighs any state interest in enforcing an unconstitutional law; injunctions safeguarding First-Amendment rights serve the public interest.
   • Scope – Statewide notice requirement was appropriate because the violation is statewide and uniform.

3.3 Potential Impact

The decision is poised to be nationally influential for four reasons:

1. Re-entrenching Stone – Courts and legislatures experimenting with similar display mandates now confront fresh, circuit-level confirmation that Stone remains controlling despite Kennedy.
2. Preserving Exposure Standing – The Fifth Circuit’s affirmation will likely deter future attempts to invoke Kennedy to bar Establishment-Clause plaintiffs at the courthouse door.
3. Guidance on Post-Kennedy Methodology – The opinion offers a blueprint for applying “history & tradition” to school-based disputes: identify a precise historical analogue, not an over-broad category such as “religious imagery on public property.”
4. Ex parte Young Clarification – The “scintilla of enforcement” standard continues to allow federal review even where a statute delegates implementation to school boards or other decentralized entities.

4. Complex Concepts Simplified

Establishment Clause

The First Amendment bar on government actions that establish, endorse, or prefer religion. It ensures the state stays neutral toward faith.

Offended-Observer (Exposure) Standing

A plaintiff may sue when they are, or will soon be, directly exposed to state-sponsored religious expression that conflicts with their beliefs. The injury is the unwanted confrontation plus the need to alter behaviour to avoid it.

Ex parte Young Exception

Although states enjoy sovereign immunity, a plaintiff may seek forward-looking relief against state officials (not the state itself) who possess authority to enforce the challenged law.

History & Tradition Test (Kennedy)

When evaluating Establishment-Clause claims, courts ask whether the disputed practice fits within a longstanding American tradition existing at the founding or early Republic.

Stone v. Graham

Supreme Court case striking down classroom Ten-Commandments postings (1980). It looked at secular purpose and effect; here, the Fifth Circuit treats its holding as intact regardless of Lemon’s demise.

5. Conclusion

Roake v. Brumley cements three critical propositions: (1) permanent, compulsory religious displays in public-school classrooms remain per se unconstitutional; (2) doctrinal shifts in Kennedy did not silently overrule earlier school-prayer precedents; and (3) students and parents retain standing to vindicate Establishment-Clause rights even before the first poster is hung. By harmonising Stone with the new historical methodology, the Fifth Circuit has provided a robust roadmap for lower courts confronting similar legislative efforts nationwide. The decision underscores that doctrinal evolution cannot eclipse enduring constitutional fundamentals—especially where the impressionable minds of schoolchildren are at stake.