GW Law Faculty Publications & Other Works

Document Type

Article

Publication Date

2025

Status

Forthcoming

Abstract

In June 2024, Louisiana enacted legislation requiring the prominent posting of the Ten Commandments on the wall of every public-school classroom. In Roake v. Brumley, a federal district court decided that the requirement violated the Establishment Clause. Judge DeGravelles’s lengthy opinion followed the Supreme Court’s 1980 decision in Stone v. Graham, which invalidated a highly similar Kentucky law. In late June 2025, in an opinion by Judge Ramirez, the U.S. Court of Appeals for the Fifth Circuit affirmed the district court in every significant respect. Texas recently enacted similar legislation, now under the cloud of Roake v. Brumley.

In this paper, we defend the result in Roake, with some proposed modifications. Central to our argument is demonstration of the continuing vitality of the Establishment Clause principles on which Stone rests. We explain that recent decisions, especially Kennedy v. Bremerton School District, have repudiated the “no endorsement” test, a widely disparaged extension of Establishment Clause concerns. But neither Kennedy nor any other decision has abandoned longstanding constitutional norms that require government actions to have a predominant secular purpose; not have the primary effect of advancing religion; and avoid excessive entanglement with religion. Lemon v. Kurtzman will no longer be shorthand for these norms, but they endure on the authority of the School Prayer Cases (among others). Along the way, we explain the impact of the Supreme Court’s decision in Catholic Charities Bureau, Inc. v. Wisconsin Labor & Industry Review Commission; clarify the limited role of “historical practices and understandings” in the application of Establishment Clause norms; and map the place of coercion in cases about school-sponsored religion.

GW Paper Series

2025-02

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