A month ago, a federal district court (in Roake v. Brumley) enjoined a Louisiana law that requires public-school classrooms to display the Ten Commandments. In so ruling, the court read Fifth Circuit precedent to confer standing on an observer offended by a religious display. It further held that the Louisiana law “runs afoul” of the Supreme Court’s 1980 ruling in Stone v. Graham, which it cited more than 100 times. In its very brief ruling in Stone (which it decided without full briefing and oral argument), the Court held that a Kentucky law that required the posting of the Ten Commandments in public-school classrooms violated the Establishment Clause.
In its appeal, the state of Louisiana has asked the Fifth Circuit to bypass the usual three-judge panel and instead hear the appeal en banc. As Louisiana explains, only the en banc court can resolve the tension and confusion among the court’s precedents on offended-observer standing. Louisiana highlights that Justice Thomas and Justice Gorsuch have powerfully argued that the demise of the so-called Lemon test (from Lemon v. Kurtzman (1971)) ought to doom lower courts’ reliance on offended-observer standing.
If the Fifth Circuit were to reject offended-observer standing, it would dismiss this case, and any justiciable challenge to the Louisiana law would be deferred until the law is actually implemented. The same result would follow if the court were to reject only the extreme version of offended-observer standing that the district court embraced: —what Louisiana soundly labels imaginary offended-observer standing, “the theory that someday, somewhere [plaintiffs] will be offended” by a Ten Commandments display that the law requires.
Conversely, if the Fifth Circuit were to find that plaintiffs have standing, it would need to address whether Stone remains good law. Although the answer to this question seems clear, that is an answer best provided by the en banc court.
As Louisiana explains in its merits brief (p. 50), the Court in Stone relied entirely on the Lemon test in ruling against the Kentucky law. But the Supreme Court explained in Kennedy v. Bremerton School District (2022) that it “long ago abandoned Lemon and its endorsement test offshoot.” Justice Sotomayor complained in dissent in Kennedy that the Court’s rejection of Lemon “calls into question decades of subsequent precedents that [the Court] deems ‘offshoot[s]’ of that decision.” As the Fourth Circuit stated in an opinion last year, “it is now clear that Lemon and its ilk are not good law.”