(The Center Square) – The full Fifth Circuit Court of Appeals ruled it was premature to determine if a new Louisiana law requiring the Ten Commandments to be displayed in public school classrooms is constitutional. The ruling doesn’t address a similar Texas case before the court.
Chief Judge Jennifer Walker Elrod issued the ruling with 17 judges concurring. She writes that Louisiana House Bill 71 “requires public schools to display the Ten Commandments in each classroom. The question before us, however, is not whether H.B. 71 is constitutional, but whether that issue is fit for judicial resolution at this time.”
Article III of the U.S. Constitution “limits federal courts to resolving ‘Cases’ and ‘Controversies.’ Because of that limitation, the issues we decide ‘must be ‘ripe’ – not dependent on ‘contingent future events that may not occur as anticipated, or indeed may not occur at all.’ This case illustrates why that limitation matters,” she said.
Walker argues the court doesn’t know how the displays will be used, how they will appear or what materials will accompany them. “More fundamentally, we do not even know the full content of the displays themselves. … Simply put, we cannot evaluate ‘how the text is used,’ … because we do not yet know – and cannot yet know – how the text will be used,” she said.
Citing a Supreme Court ruling in Texas v. United States, she wrote, “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 Texas 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.”
The court vacated the lower court’s ruling adding “that nothing in today’s narrow holding prevents future as-applied challenges once the statute is implemented and a concrete factual record exists.”
Judge James Ho concurred, issuing a separate statement concluding, “the Louisiana Ten Commandments law is not just constitutional – it affirms our Nation’s highest and most noble traditions.”
Judge James Dennis issued a 30-page dissent with four judges joining him. He said the ruling was a “calculated stratagem to evade” Supreme Court precedent.
Louisiana was the first state to enact a law requiring a poster of the Ten Commandments to be displayed in classrooms. Texas enacted a similar law. In both states, parents and groups sued arguing the laws are unconstitutional.
A federal district court in Louisiana blocked the law from going into effect. Louisiana appealed to the Fifth Circuit. A panel of three judges upheld the ruling. The state appealed, requesting the full court to hear the case. By that time, a district court had blocked a new Texas law from going into effect and Texas appealed to the Fifth Circuit. In January, the full court heard both cases, The Center Square reported.
The cases, Rev. Roake v. Brumley in Louisiana, and Rabbi Nathan v. Alamo Heights Independent School District, in Texas, “raise fundamental questions about religious freedom and the separation of church and state guaranteed by the First Amendment,” the American Civil Liberties Union argued.
After making her case before the full court, Louisiana Attorney General Elizabeth Murrill and Gov. Jeff Landry said they were optimistic. After the ruling, Landry said in a statement “Louisiana’s Ten Commandments law is back in effect! Thank you to the Fifth Circuit for this important ruling. Kudos to AG Murrill for not backing down. Common sense is making a comeback!”
After the ruling, Murrill said the court had vacated the lower court’s “preliminary injunction against Louisiana’s 10 Commandments law. Rules challenges are premature – allowing the law to go into effect. Don’t kill or steal shouldn’t be controversial. My office has issued clear guidance to our public schools on how to comply with the law, and we have created multiple examples of posters demonstrating how it can be applied constitutionally. Louisiana public schools should follow the law.”
The ACLU, ACLU of Louisiana, Americans United for Separation of Church and State, and the Freedom From Religion Foundation, with Simpson Thacher & Bartlett LLP serving as pro bono counsel, said the ruling was “extremely disappointing.”
It will “unnecessarily force Louisiana’s public school families into a game of constitutional whack-a-mole in every school district. Longstanding judicial precedent makes clear that our clients need not submit to the very harms they are seeking to prevent before taking legal action to protect their rights. But this fight isn’t over. We will continue fighting for the religious freedom of Louisiana’s families.”
It also notes that ruling doesn’t address the Texas lawsuit after the court heard both cases. “Plaintiffs’ legal counsel is exploring all legal pathways forward to continue the fight against this unconstitutional law,” it said.
