Louisiana Says It’s Too Soon to Sue Over Ten Commandments Law

Opponents of Louisiana’s law requiring that all public school classrooms display the Ten Commandments “jumped the gun here and filed an unripe case” an attorney for the state told the Fifth Circuit during oral arguments Thursday.

“Precedent says you need an actual encounter in order to bring” the First Amendment claim parents and students have brought, J. Benjamin Aguiñaga, Solicitor General of Louisiana, told the three-judge panel.

The state law, known as HB 71, requires schools to post the commandments alongside a context statement, with the option to include additional founding-era documents in the display. The law, which was scheduled to take effect on Jan. 1, authorized the State Board of Elementary and Secondary Education to craft operative rules and regulations for the Decalogue’s display and enforcement.

Students and parents from several school districts sued to block the measure and, in November convinced a lower court to bar enforcement, finding it to be unconstitutional on its face and as applied.

Louisiana is seeking reversal of US District Judge John W. deGravelles’ preliminary injunction at the New Orleans-based US Court of Appeals for the Fifth Circuit. Eighteen states, led by Kentucky, filed a friend of the court brief in support of the law, some of which may adopt similar measures in light of the US Supreme Court’s 2022 shift in how it views First Amendment Establishment Clause cases.

The state argued that “we shouldn’t get to the merits because it’s not ripe, and y’all don’t have standing yet,” Judge Catharina Haynes said as the challengers made their case.

What makes this so significant is the requirement that it be in every single” classroom in public education, Jonathan K. Youngwood of Simpson Thacher & Bartlett, LLP argued for the challengers. “It can’t be avoided, it can’t be averted.”

‘What God Says’

Asked by Haynes, Aguiñaga said the law was passed to teach students about the Ten Commandments’ importance to the American legal system.

Youngwood countered by quoting legislators who said, in one example, “it is so important that our children learn what God says is right.”

“That’s why I asked him, because he was trying to pull from that—act like ‘oh it has nothing to do with religion,’” Haynes said “Well it clearly does, and isn’t that where the First Amendment is violated?”

The defendant East Baton Rouge, Livingston, Vernon, St. Tammany, and Orleans Parish school districts can’t comply with the requirement so long as the injunction is active, the state maintains. But deGravelles’ order doesn’t cover non-parties, and Louisiana said other school boards must still comply with it.

Sooner Than Later

The case follows the Supreme Court’s ruling in Kennedy v. Bremerton School District, where Louisiana said the high bench tossed its Lemon test, once used to determine Establishment Clause violations. The test considered a law’s purpose.

Still Haynes asked Aguiñaga whether the law’s purpose affects the preliminary injunction. Aguiñaga said without Lemon‘s purpose prong, the question is whether the law meets the court’s historical purposes and understanding test.

“I know this needs to be addressed sooner rather than later, and we will do our best to do so,” Haynes said, on behalf of herself, and Judges James L. Dennis and Irma Carrillo Ramirez.

Becket Fund for Religious Liberty also represents Louisiana. Americans United for Separation of Church & State and American Civil Liberties Union also represents the challengers.

The case is Roake v. Brumley, 5th Cir., No. 24-30706, oral argument 1/23/25.