How the Law Upholds Public Display of the Ten Commandments - Judge Ho on the Merits of Roake v. Brumley

By Trevor Esper

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On February 20, 2026, the Fifth Circuit released an opinion in Roake v. Brumley, vacating the preliminary injunction that had prohibited the placement of the Ten Commandments in classrooms in the public schools in Louisiana. The unsigned opinion vacated the injunction on the grounds that the case was not ripe for adjudication, as the facts had not been sufficiently developed to determine whether or not the law violated the Free Exercise and Establishment Clauses of the First Amendment. The court reached this decision because the Ten Commandments have both a religious and secular importance in the United States, especially within our legal and political system. Since the Ten Commandments hold such a historical place in the history and the legal system of the United States, the court emphasized that, without specific facts showing they were being displayed in a way that discriminates against other religions, the case was not ready to be heard and the injunction was improper.  

However, Judge Ho wrote a concurring opinion that outlined why this case was in fact ready to be heard and why the court should have ruled on the merits instead.  

Judge Ho opens his concurring opinion by stating that the Louisiana law “is constitutional and consistent with our founding traditions. I would vacate the preliminary injunction for that reason.” He rightly points out that, in an appeal from a preliminary injunction, the court is free to rule on the merits or the jurisdiction, citing Munaf v. Geren. He then explains that, in a case like this, where the injunction rests on a question of law and the plaintiffs clearly cannot prevail, adjudication on the merits is the correct approach. The main reason for this, according to Judge Ho, is that when the government is entitled to judgment as a matter of law, the court should terminate litigation immediately, rather than prolonging it. His reasoning highlights both that this case is ripe for decision on the merits, and that prolonging litigation is a waste of time and resources. Since, as Judge Ho pointed out, this law is in line with our history and tradition, the decision is simple. The law should stand and litigation should end here.  

The plaintiff in this case relied solely on Stone v. Graham, which was a pre-Kennedy v. Bremerton case and was decided under the Lemon test. Since Kennedy did away with Lemon, the entire argument from the plaintiff is based on bad caselaw. Stone was a case from the 1980s in which the court ruled Kentucky’s Ten Commandments law was unconstitutional under the first prong of Lemon, which required that the law have a secular legislative purpose to survive an Establishment Clause challenge.  

The new standard, under Kennedy, is that the law must be rooted in our nation’s history and tradition. As explained by the majority, laws very similar to the Louisiana Ten Commandments law have been around since the nation’s founding. Many of the founders understood the role the Ten Commandments had not only in the ordinary daily life of the people, but also in the formation of the laws of many nations, including those of the newly formed United States. Education at the time included not only civics but also religious education. “Secular” public education did not truly begin in the United States until the mid-19^th century – and even that public education was hardly secular by today’s standards.¹ Before that time, education was normally conducted in a private school run by a local religious group. The reason Pierce v. Society of Sisters in the 1920s was an important case is that Oregon wanted to shut down religious schools and force children into public education to separate religious education from the overall education of a child.  

Judge Ho also explains that the founders did not even consider the possibility of a populace not rooted in a religious education system. Judge Ho quotes John Adams, stating that this nation will not survive without a religious people.  He is right to say that the display of the Ten Commandments is within the norm of our tradition and that this case should end there. While the majority also points out that the Louisiana law is constitutional on its face, they also claim that, since the law allows school boards to determine how the Ten Commandments will be displayed, it is possible that certain applications of the law may violate the Free Exercise Clause. If citizens in the founding era of the United States were predominantly educated in religion through the education system, a law that requires teachers to teach about Christianity itself would likely not be a violation of the Constitution. Therefore, claiming that there are some instances where displaying the Ten Commandments could possibly violate the Constitution is incorrect.  

The First Congress stated in the Northwest Ordinance of 1789 that religion was vital to the happiness of mankind and that, therefore, religious education in schools should always be encouraged, not discouraged. Therefore, the idea that any law requiring the displaying of the Ten Commandments is in violation of the Constitution simply does not square with the American tradition.  

The law in question does not require teachers to teach the Ten Commandments, what they mean, where they come from, or how they influence the American legal system. But the American tradition supports the idea that even such instruction would not infringe on the rights of students or parents. As Judge Ho rightly points out at the end of his concurrence, Americans are a religious people, and our “institutions presuppose a Supreme Being.”

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¹ https://teachdiligently.com/articles/the-secularization-of-american-public-schools