The Volokh Conspiracy

Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.

Friends, we invite you to a stellar little event we're hosting on "The Other Declarations of 1776." As part of the nationwide celebration of 250 Years of America, we're partnering with the Liberty & Law Center at Scalia Law School for an examination of the various declarations of rights that the new states adopted in 1776. It's Friday, April 10 in Arlington, Va. Register here! And, if you want to learn more about The Other Declarations in the meantime, check out the latest blog post in our series, this week focusing on Maryland.

New on the Short Circuit podcast: A judicially engaged judge grants habeas when faced with a masked Fourth Amendment.

1. The head of NYC schools' food services division co-owns a beef-importing business with executives from a company that supplies the schools with chicken. Second Circuit (unpublished): And since the chicken company executives upped his ownership stake in the beef business in exchange for letting some suspect chicken slide, lots of convictions on lots of counts affirmed all around.   Read More

For the past year or so, those of us who follow the Religion Clauses have been waiting to see what courts would do with Louisiana's Ten Commandments law in Roake v. Brumley. Now we have an answer—though not a final one. A couple of weeks ago, sitting en banc, the Fifth Circuit vacated an earlier panel decision and dismissed the case on ripeness grounds. It's a technical ruling (though sticklers may dispute that ripeness is merely "technical"), but it's also revealing, because it shows that whether schools may display the Decalogue will depend on how the practice actually operates in context.

Here's the background. In 2024, Louisiana enacted a statute requiring every public school classroom to display the Ten Commandments. The law specifies the text to be used and requires a statement describing the Commandments' historical role in American education, but it leaves the details largely to local school authorities.

Parents filed a pre-enforcement challenge in federal court. They argued the displays would violate the Establishment Clause under Stone v. Graham, the Supreme Court's 1980 decision striking down a similar Kentucky requirement. The district court agreed and issued a preliminary injunction, and a Fifth Circuit panel affirmed. The panel reasoned that lower courts remain bound by Stone unless and until the Supreme Court overrules it.

In its ruling, the en banc Fifth Circuit declined to reach the constitutional question. Because no school district had yet implemented the law—no posters are on classroom walls yet—the court held that the dispute was premature. In effect, the court said, we need to see how this actually works in practice before we can decide whether the displays violate the Establishment Clause.

This ruling sidesteps a deeper doctrinal question. The Stone Court relied heavily on the Lemon framework, particularly the idea that government may not act with the purpose of promoting religion. The Stone Court also emphasized the special features of the public-school setting: students are a captive audience and especially susceptible to state-sponsored religious influence.

But the Court's more recent Establishment Clause cases have moved in a different direction. In Kennedy v. Bremerton School District (2022), a school prayer case, the Court rejected the Lemon framework and instructed courts instead to look to the nation's "history and tradition," though the Kennedy Court also emphasized coercion—whether students are pressured to participate in religious exercise—as a central constitutional concern.

The difficulty is this: the Supreme Court has not overruled Stone, but it has abandoned the doctrinal foundation on which Stone rests. Lower courts are left reading the tea leaves. The Fifth Circuit panel resolved the tension one way—follow Stone until the Supreme Court says otherwise. The en banc court found a different solution. It avoided the merits altogether and ruled the case unripe until concrete facts exist.

That ripeness holding is technical (there's that word again), but I think it's analytically significant. It suggests that context will matter a great deal under the Court's newer approach. Details such as the age of the students, the way the display is presented, and whether it is integrated into instruction will all shape the constitutional analysis.

Sooner or later, a school district will implement the Louisiana statute. When it does, litigation will resume—this time with an actual record. Courts will then have to confront the central question directly: Is Stone still good law after Kennedy?

I discuss the Fifth Circuit's en banc decision in more detail in a short Legal Spirits podcast episode, which you can listen to here.