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Appellate court upholds Louisiana’s Ten Commandments law · Cultural Wars | America Out Loud News

0:23
Okay, a couple things we've got to get into today, some very important things.
0:28
On Friday, last week, the Fifth Circuit Court of Appeals issued their ruling, their majority decision in the Louisiana Ten Commandments law.
0:41
I'm sure you've heard about this.
0:42
If you haven't, well, uh, the news is it's what I expected.
0:49
This is this is um it is uh well, it's it's it's just where I thought we'd go.
0:57
And it's good news if if you're uh religious, and it should be good news, even if you're not, because the Ten Commandments have been part of our education system for for centuries, and the Fifth Circuit Court of Appeals here has recognized that.
1:16
They've recognized the very best of our traditions, includes the Ten Commandments as part of education.
1:25
I want to get into, I want to get into their decision because it's fascinating.
1:31
Matter of fact, one of the one of the the judges issued um his own opinion.
1:41
Uh Judge Ho is that yes, Judge James Hope issued his own opinion in conjunction with the majority.
1:50
The majority opinion is unsigned, but you know, justices could then issue their their own as they saw fit, and Ho did.
1:58
Ho issued his own, and it is a scathing rebuke of individuals, of organizations of parties who would attempt to assault the Constitution in this manner.
2:12
Now, the dissenting justices, I don't know, five or six, they also have their own, uh, their own statement, their own dissension, but Ho destroys it.
2:24
He just lays it out and fills it full of holes.
2:28
And I just I'm looking forward to getting into it.
2:31
It's a uh it's just a very we're gonna dissect it here before this hour is done.
2:37
We're gonna have some fun dissecting this case out of the out of the Fifth Circuit Court of Appeals.
2:43
But before we do, yesterday was a very special birthday.
2:46
It's February 22nd, and you know whose birthday it is on February 22nd, the original of all commander and chiefs, the original president, commander in chief George Washington.
3:04
He was born February 22nd, 1732.
3:09
So I think it's apropos that we go to history class, just a brief one.
3:13
I mean, we could take an entire day, really.
3:17
We could, and in the past we have, and there are other days of the year that we do take entire days, and we just spent we spend the whole day talking about George Washington.
3:29
Uh, you know, one of those days is July 9th, the anniversary of the Battle of Manon Gahala.
3:36
Oh, it's just one of my favorite, it's one of my favorite anniversary programs.
3:43
Uh it be because that story, as you know, if you've listened to me for any length of time, that story is not it's been ushered out of our uh out of our history textbooks.
3:54
We don't talk about it anymore in history class.
3:57
It's not allowed, it has been removed.
4:01
Instead of altering it and changing it, they just stopped talking about it.
4:06
They just decided we're gonna make this story go away.
4:09
It's going to slip into oblivion.
4:12
Well, we we don't let it here in our history classes.
4:15
We don't let that story slip away into oblivion.
4:20
Matter of fact, we do our best to keep the national memory alive and well, and we believe that history class is designed to do that, and so we are very intentional about it.
4:35
We're very serious about it, and you know, we like to have fun with it as well, because history's fun, but we're intentional about it.
4:44
There is there are things that we have got to remember, because if we don't remember who we were, then we won't know who we are, and we won't know how we got to where we are.
4:58
And so history, it's important.
5:01
So 1732, Westmoreland County in Eastern Virginia.
5:06
We we see the birth of George Washington.
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Here's how Bill Bennett, one of our favorite historians, we we refer to him a lot.
5:16
Here's how he uh describes the three crucial ways in which George Washington shaped our nation.
5:26
Bill Bennett says first he led American forces during the fight for independence.
5:31
Second, he presided over the writing of our constitution, and third, he served as our first president, and the only time, twice, as a matter of fact, but the only time a unanimous unanimous vote was doled out from the Electoral College.
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100% everybody was like George Washington.
5:54
Yeah, hands down.
5:55
It's never happened again.
5:58
At times it was literally Washington's character alone, single-handedly that seemed to hold the fledgling United States together.
6:09
He became a symbol of what Americans were struggling for, risking his life and fortune to lead his countrymen towards liberty.
6:20
When he wrote to Martha, he's he said, you know, that the Congress here, they they they've asked me to go lead the army, the Continental Army, and you know, I'll probably be home in six months.
6:35
And it was seven years before he would grace the threshold of Mount Vernon.
6:41
Now, Martha would come to him often.
6:45
She would she spent that that long winter in Valley Forge next to him, and and she would she would come to him, but but he wouldn't get home.
6:55
He wouldn't get to Mount Vernon.
6:58
He literally risked everything for the present and the future of America.
7:07
During one uh particular battle during the Revolutionary War took place at Monmouth in New Jersey.
7:18
And in this battle, the the American troops were in this confused flight of retreat.
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They're on the verge of destruction.
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And all of a sudden, as as if almost out of nowhere, Washington appears on the field almost magically.
7:33
Poof, there he is.
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I mean, obviously, it didn't happen that.
7:37
We didn't magically appear, but he he just kind of came out of nowhere.
7:42
And there he is on the field, and and soldiers in their and in mid-retreat stop in their tracks and they stare at this tall blue-coated figure, spurred his horse up and down the line, spurring his horse up and down the line, halting the retreat.
8:01
Think about think about every scene in every movie where someone has been leading a group of men into battle.
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Braveheart, you know, he's going up and down the line several times during Lord of the Rings.
8:16
Uh Theodon going up and down the line, Aragon going up and down the line.
8:22
Washington is the inspiration here, but he's not going up and down the line trying to inspire his men to go into battle.
8:33
He's running up and down the line with this horse, attempting to inspire his men to not retreat, to turn back around and to get in to get into the fray, turn back around, get into the fight.
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Stop retreating, be men.
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Quit yourself like men.
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The young Marquis de Lafayette.
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He remembered this site for the rest of his life.
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Here's how we here's how uh Lafayette described it.
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Washington rode all along the lines amid the shouts of the soldiers cheering them by his voice and example and restoring to our standard the fortunes of the fight.
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I thought then, as now, that never had I beheld so superb a man.
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The general turned his army around that day.
9:27
The fighting raged until sundown, and that night the British took the chance to slip away.
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Washington's very presence had stopped a route and turned the tide of the battle.
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His very existence.
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And he had the courage to do this really because of Manon Gahala.
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Because of what took place during that battle.
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Now, I'm not going to get into Manon Gahala now.
9:55
Uh, you can you can find it in podcast.
9:58
You can find it on Substack.
9:59
I've
10:00
I've written about it on Substack.
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We've got you know, if you if you go to AmericaOut Loud.news, go to my show page and just scroll down, you know, find July 9th.
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Matter of fact, the past, well, we've been on since August of 23.
10:15
So July 9th of 24, July 9th of 25.
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Either of those days, we we recount this story.
10:22
It's an annual, it's an annual history class.
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It's an anniversary history class that we go to.
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So you can find it.
10:29
The information's there.
10:32
But it's because of Manon Gahala that inspires Washington to do these types of things.
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These bold, courageous deeds.
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And it's it's the pro it's the prophecy that the old Indian chief gave him.
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You know, 15 years after Manon Gahala.
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That old Indian chief who was there that day, who was there at the battle, who tried to take Washington out personally, and and 17 others of his his brave warriors.
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And he says to Washington, couldn't do it.
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Couldn't take you out.
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And I just told my men, stop stop firing at this guy.
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He's protected by the Great Spirit.
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And then he starts to prophesy, and he says, Washington will never die in battle.
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And so this is here.
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We see Washington in the revolutionary war doing these types of heroic deeds.
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But he's doing them with the understanding and belief in a prophecy from an old Indian chief that he's not going to die in battle.
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So you know what?
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He might as well be as courageous as as courageous can be.
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And there were several times.
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And we get into these times when we when we recount Manon Gahala, we get into the we get into the details, the aftermath during the revolutionary war, where there were times Washington uh was a goner, dead to rights that he was in the sights of the enemy.
12:09
He was in the crosshairs and should have been a goner.
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It happened more than once.
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It happened several times.
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And here at Mount Mouth, he just like, I don't care.
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I believe the prophecy spoken over me.
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And uh you men to turn back around.
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Let's go.
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Let's go.
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Let's fight.
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Let's get into this.
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Let's save liberty.
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Let's let's save freedom.
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Let's save this country.
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It was uh uh, you know, uh time and time again, time and time again.
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Americans turn to Washington for aid, for help, for comfort, for direction.
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Uh, he was as biographer James Flexner called him the indispensable man, the indispensable man of the American founding.
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That's what Flexner referred to him as.
13:12
Excuse me.
13:14
Without Washington, there may have never been a United States.
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That's a true statement.
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And it's apropos, I think, that the Fifth Circuit Court of Appeals would make their decision on the weekend that we celebrate Washington's birthday because their decision is it speaks to the foundation of the country.
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It speaks to our history.
13:46
It speaks to our founding.
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It speaks to the beliefs that the founding fathers had.
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It speaks to the beliefs and the faith that the citizens had at the founding of this country.
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And there wasn't anybody who believed it more than George Washington.
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I guess I could say that many of them.
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Not all of them, but many of them, probably 99% of the founding fathers believed this equally.
14:25
That America was founded on Christian principles of morality.
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And those Christian principles of morality are rooted in the uh Judeo principles of the Ten Commandments.
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And therefore, we we talk about the Ten Commandments, and we've talked about the Ten Commandments and education for centuries.
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We've displayed the Ten Commandments.
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The Ten Commandments have been part of our part of our history books for centuries, part of our instruction for centuries, part of our education for centuries.
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But like the Battle of Manon Gahala, the left in this country, those that are driven by the ideological bent of Marxism, of anti-religion, of anti-God, like Manon Gahala, they have attempted to drive out the Ten Commandments from our education system.
15:28
They've attempted to drive out prayer from our education system.
15:34
They've attempted to drive out God.
15:36
They've attempted to drive out any aspect or reference to religion.
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Except those aspects of religion that they've desired to take over.
15:48
And in particular denominations, they've done a spectacular job of taking them over.
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A spectacular job.
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Almost to where they are proud to be presenting anti-biblical theories and doctrines right from their uh religious podiums.
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I mean, directly from their pulpits.
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They have attempted to drive a wedge between the belief system of the citizens of this country and how we go about educating our future citizens.
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And they've been so good at it.
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They have they've been successful.
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They've they have achieved great success.
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But that success is now beginning to wane.
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And we are beginning to take background.
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And this decision here out of the Fifth Circuit Court of Appeals demonstrates how indeed we are beginning to take background.
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And we're going to dive into it today.
16:50
We're going to discuss it.
16:51
We're going to dissect it.
16:52
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All right.
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Well, speaking of a beautiful time.
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We personally, we are celebrating this decision out of the Fifth Circuit.
21:53
Because it acknowledges our nation's traditions.
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It acknowledges that we are a country founded on Judeo Christian principles, rooted in morality.
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All right, let's get into the details here.
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As you know, in 2024, Louisiana passed a law that said the Ten Commandments needed to be on display in every public school classroom.
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And promptly, a group of parents filed a lawsuit against Louisiana, stating that the law violated their First Amendment rights of free exercise and establishment.
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This would be that the free exercise and uh free establishment clause, that this clause in the First Amendment is being violated.
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Among other objections, the plaintiff said the law unconstitutionally pressures students into religious observance.
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You know, siding with the parents.
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The state appealed.
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And a three judge panel in the uh Fifth Circuit Court of Appeals upheld the ruling from the the district court that indeed the law was unconstitutional, and the three uh judged panel essentially said no, this this law can't continue.
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However, the Fifth Circuit then agreed to rehear the case in bank, which means all of the the judges and the Fifth Circuit, all 18 of them will sit on a panel and they will all hear the case.
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Instead of it just being a three-judge panel, all 18 will now hear the peel, the appeal.
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And the majority of the 18, uh, a large majority, 12 to 6, actually, on the panel.
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Uh instead ruled that the suit was not ripe or ready to be litigated yet.
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In a uh unsigned opinion, the panel said there were still too many unknown factors about how the law would be implemented.
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Now, I want to I want to dive into this here for a second because it is just it's it's just good.
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There are several aspects of this thing that are good.
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So we're looking at uh one, two, three, four, five, six, seven, eight.
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I just want to make sure all 18 are yep, all 18 are here.
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All right.
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And so this is her curium, meaning it's unsigned.
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It's an unsigned opinion by the majority of the court.
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12 to 6.
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Here's what they say.
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Courts do not decide constitutional questions in the abstract, nor is constitutional adjudication and exercise and imagination.
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That's their that's their first line.
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Meaning that if they were to make a decision here, it would be based upon imagination, based upon what could come, based upon uh abstracts.
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And they said our role is more modest and more demanding to resolve concrete disputes grounded in real facts and an actual record.
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So, in other words, we can't just pretend you you the plaintiffs here have started this case based on conjecture, based upon what could be.
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Well, we're not a court here that's going to decide what could be.
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We're a court who's going to decide on what is on what has been.
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So then they reference Louisiana House Bill 71, which requires public schools to display the Ten Commandments in each classroom.
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The question before us, however, is not whether House Bill 71 is constitutional, but whether that issue is fit for judicial resolution at this time.
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So they didn't even address the constitutionality of it.
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They are really addressing the impropriety of the swiftness of the lawsuit.
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This we don't even know how this thing's gonna unfold, they're saying.
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Arguing that the statute is facially unconstitutional under both the establishment and free exercise clause of the First Amendment.
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The district court granted a preliminary injunction, concluding that the parents' claims were ripe and meritorious.
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A panel affirmed.
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That would be the appellate panel of three, a panel affirmed, and we voted to rehear the case and bank because the parents challenge turns on unresolved factual and contextual questions.
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Equitable relief was premature, and we vacate the preliminary injunction.
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The district court and the three panel judges were premature in their uh allowance of equitable relief, because we don't even know the facts in this case yet.
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And then they they get into the country of the constitution.
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Article three limits federal courts to resolving cases and controversies because of that limitation.
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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.
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The majority justices continue.
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This case illustrates why limitations matters or or why that limitation matters.
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There can be no doubt that the Ten Commandments bears immense religious significance for believing Jews and Christians, they are the word of God handed down to Moses on Mount Sinai.
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But they also have historical significance as one of the foundations of our legal system.
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That dual character forecloses any categorical rule against their display on public property.
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And then they cite a case from 2005 upholding a Ten Commandments monument on the state of Texas Capitol Grounds.
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They continue.
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Instead, constitutionality turns on the context of the display and how the text is used.
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Well, House Bill 71 sets certain minimum requirements regarding the text, the size, the accompanying context statement of the display.
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It leaves the nature of the display entirely to the discretion of local school boards.
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That delegation and those minimum requirements necessarily leave numerous essential questions unanswered.
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We do not know, for example, how prominently the displays will appear.
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What other materials might accompany them, or how, if at all, teachers will reference them during instruction.
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More fundamentally, we don't even know the full content of the displays themselves.
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Although the statute requires
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Requires inclusion of the commandments and a context statement that expressly permits permits additional content, such as the Mayflower Compact, the Declaration of Independence, and the Northwest Ordinance to appear alongside them.
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Simply put, the justices say, we cannot evaluate how the text is used.
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Because we do not yet know and cannot yet know how the text will be used.
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And in the absence of this evidence, we are not able to conduct the fact intensive and context specific analysis required by the Supreme Court's Ten Commandments cases.
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And then they list another case here from 07, Staley versus Harris County.
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They continue.
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Requiring courts to consider the specific context in which the instruction or material at issue are presented.
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And then they cite Mahmood Taylor just this last summer.
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Excuse me.
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Moreover, they continue.
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The plaintiffs suffer no concrete harm from the challenged policy itself, which does not require them to do anything or to refrain from doing anything.
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Now that's a that's a big statement.
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That while that the court is declining to fall in line with the district judge and the three judge panel.
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They don't believe there's any facts made available for them to make those decisions.
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Yet they're still stating that the plaintiffs suffer no concrete harm from the policy itself, which does not require them to do anything or refrain from doing anything.
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There's no requirement that the students have to stop and stare at the Ten Commandments.
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There's no requirement that the students have to recite or memorize the Ten Commandments.
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There's no requirement that the students have to cease doing what their normal activities throughout the course of the day are.
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And the judges are making this come to light.
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This right here is a shot at all of these organizations and institutions and individuals in the Marxist camp that made plans to file this lawsuit on day one, the second it was enacted, not even enacted.
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The second it was signed into law, they these lawsuits were fired up.
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Oh, this was wrong, blah, blah, blah, blah.
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And the court of appeals here is saying, we don't even have any facts yet coming out of this.
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How can you claim that you've suffered concrete harm when you're not required to do anything or refrain from doing anything?
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The panel concluded that this case is not like Staley, where no decision had been made regarding any aspect of the future display of the monument.
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Reasoning that here certain aspects of the future displays are known.
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And then they cite roque v.
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Brumley.
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But the language of an opinion is not always to be okay.
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I'm gonna I'm gonna skip through this because there's a lot of uh reference to to Staley and to uh rogue and then to Brown.
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Lots of court references.
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Okay, I'm gonna drop down here.
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Uh or where they they they say if those facts were insufficient to present a ripe controversy, it is difficult to understand how today's record does so.
34:23
So they they go through and cite these cases that describe how there was not factual, there was not enough factual evidence to present if the case was was ripe yet, and they're saying, look, if all of these previous cases couldn't determine if the case was ripe, how in the world are we going to be able to do that today?
34:44
Okay, then they keep going.
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The parents and the principal dissent seek to sidestep this difficulty by framing the case as an attack on House Bill 71's minimum requirements alone.
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But an unripe challenge does not become ripe merely because a party asserts that the challenged action would be unlawful on any conceivable set of facts.
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The Supreme Court has squarely rejected that approach in Texas v.
35:16
United States.
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The challengers, no differently than the challengers here, ask the court to hold that under no circumstance would the challenge action be lawful.
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The court made swift work of that argument, explaining that the justice has lacked sufficient confidence in their powers of imagination to affirm such a negative.
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And that's what the justices are saying here.
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We can't rely on our the powers of imagination to, you know, you're asking us to imagine some type of harm that's going to happen.
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And we can't do that.
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Asking us to declare here and now, and in the abstract that every possible House Bill 71 display would violate the establishment clause, would require precisely what Texas forbids.
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The substitution of speculation for adjudication.
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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.
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That exercise exceeds the judicial function.
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It's not judging, it is guessing.
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And because it rests on conjecture rather than a concrete factual record, it does not cure the ripeness defect, it compounds it.
36:48
Facial challenges, no less than as applied challenges may degenerate into conjecture rather than ruling on concrete controversies.
37:00
So the court here is offering a scathing rebuke to the plaintiffs, to the attorneys that you guys are you're jumping ahead of the game here.
37:14
We don't even have enough factual evidence.
37:17
This case is not ripe.
37:19
The and this court is rebuking the federal judge who said, Yeah, it's ripe, it's it's unconstitutional, strikes it down.
37:28
And then they are rebuking the appellate panel of three judges who said, yeah, this case is ripe.
37:35
It's unconstitutional.
37:37
Strike it down.
37:39
They are on a scathing.
37:47
Just a scathing decision here that says, how can you, how can you go about this?
37:53
Ripeness does not demand unqualified certainty, but it does demand facts sufficient to permit judicial judgment rather than speculation.
38:03
And because there's no one qualified right to pre-enforcement review of constitutional claims in federal court, we must insist that an anticipatory challenge to a state's constitution that constitutionality grow out of a real substantial controversy between parties, a dispute definite and concrete.
38:24
And that's not that's not what we have here.
38:26
We don't have a dispute definite and concrete.
38:31
The judges continue.
38:38
And many constitutional provisions require far less contextual inquiry than the establishment clause.
38:45
If House Bill 71 were such a statute, or if the establishment clause demanded less contextual sensitivity, this case might well be ripe.
38:55
But House Bill 71 confers sweeping discretion on local school boards.
39:00
And the establishment clause demands close attention to context.
39:04
That incongruity is dispositive.
39:08
It forecloses judicial review at this stage and renders the plaintiff's claims non-justice, not here's a brand new word, my friends, non-justiceable.
39:21
Non-justice, I've never seen that one before.
39:24
That's why these court cases, by the way, are fun to read, because you're coming across versions of words that you're just like, okay, let's go.
39:33
They continue.
39:34
We add, however, that nothing in today's narrow holding prevents future as applied challenges once the statute is implemented in a concrete factual record exists.
39:46
So they're saying, all right, I mean, once there's a record, yeah, if you want to sue, go ahead.
39:49
But right now, there's there's uh this thing isn't ripe.
39:54
And so here's how they close it.
39:57
At this, as this case comes to us, it does.
40:00
Does not at this time present the dispute appropriately resolved through the judicial process.
40:07
Accordingly, we vacate the preliminary injunction.
40:11
Bump bah bomb.
40:13
Signed, sealed, and delivered.
40:16
Vacated.
40:18
All right.
40:19
Okay, I tell you what, we're I'm looking at the clock.
40:21
We're up against the break.
40:22
On the other side.
40:24
I want to get into the statements from James C.
40:27
Ho, the circuit judge who is concurring with the majority.
40:32
He is the one judge who offered his own opinion, separate from the majority.
40:39
And it is even more scathing of a rebuke than the majority.
40:43
All right, we'll get to that on the other side of this break.
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42:22
Well, I challenge you to find a broader array of great voices, a deeper bench of experience or a more dedicated collection of passionate patriots than here on America Outloud.
42:39
Now is our time.
42:42
America outlaw.
42:45
Liberty and justice for all.
42:54
Okay, let's get into the concurring comments, the concurring statement and the judgment by Circuit Judge James C.
43:05
Hope, because this is this is scathing.
43:08
This is even more scathing than the in bank opinion.
43:13
Okay, here's how he starts out.
43:15
A new Louisiana law requires the display of the Ten Commandments in public schools.
43:21
The law is constitutional and consistent with our founding traditions.
43:26
I would vacate the preliminary injunction for that reason.
43:30
He could have stopped right there.
43:32
So the in bank court, the full panel, vacated the preliminary injunction because they said the law was not yet ripe.
43:41
There weren't enough facts.
43:43
And James C.
43:44
Ho comes out and says, but I would vacate it just on the fact that the law is constitutional and consistent with our founding traditions, and then he begins to lay out how come the law is constitutional and consistent with founding traditions.
44:02
This, my friends, is beautiful.
44:03
Okay, here he says.
44:12
But the important thing is that the decision vacates the preliminary injunction and allows us to uphold the Louisiana law against constitutional attack in the future.
44:23
So I'm content to concur in the judgment.
44:27
That said, I would avoid ripeness and vacate on the merits.
44:32
Ordinarily, we must decide jurisdiction first.
44:36
But in an appeal of a preliminary injunction, there is no order of operations.
44:41
We may vacate on the merits without ruling on jurisdiction at all.
44:47
And then he cites, you know, some cases.
44:50
Indeed, adjudication of the merits is most appropriate if the injunction rests on a question of law, and it is plain that the plaintiff cannot prevail.
45:01
If the government is entitled to judgment as a matter of law, it is appropriate for us to terminate the litigation now.
45:09
We last confronted these issues in United States v.
45:12
Abbott.
45:15
That was a reference to that circuit court case in 2024.
45:22
He said the majority vacated the preliminary injunction on the merits and remanded for further proceedings without deciding jurisdiction.
45:32
I wrote separately to note that I would vacate on jurisdictional grounds instead, specifically the political question doctrine.
45:41
I believe that was not only correct, but would preclude further litigation entirely and thus terminate the litigation now.
45:49
I mentioned this not to relitigate Abbott, but to say that if it was proper to vacate on the merits and abbot, then it's proper to do so here as well.
46:01
No further facts are needed to vacate the preliminary injunction here on the merits.
46:06
Moreover, upholding Louisiana law would terminate the litigation entirely.
46:12
That's why I sought to do it in Abbott, and I do the same here.
46:17
And then he gets into the details of why he would base this on the merit.
46:22
And this is where it just gets holy smokes.
46:26
Okay.
46:39
That was the case from 1980.
46:42
It was a uh um, it was a uh supreme or it was a uh a Ten Commandments case in Kentucky.
46:52
And in that case, the Supreme Court ruled that you know the Ten Commandments could not be on display.
46:59
All right.
47:00
That's that's Stone v.
47:01
Graham 1980.
47:03
All right, Ho continues.
47:05
That's telling because Stone turns entirely on Lemon v.
47:09
Kurtzman from 1971.
47:12
And everyone agrees that lemon is no longer good law after Kennedy v.
47:16
Bremen in 2022.
47:20
Noting that this court long ago abandoned lemon, the lemon test.
47:27
Stone begins by observing that under the first prong of the lemon test, statutes must have a secular legislative purpose.
47:38
It then rests its holding explicitly and exclusively on the first prong of lemon.
47:44
We conclude that Kentucky's statute requiring the posting of the Ten Commandments and public school rooms had no secular legislative purpose and is therefore unconstitutional.
47:56
Now he's quoting that from the lemon case and the lemon case, 1971 created as lemon test, and it had three prongs.
48:10
And based upon the first prong, the Supreme Court then he cites this quote, they conclude that Kentucky's statute requiring the posting of the Ten Commandments in public schoolrooms had no secular legislative purpose, and therefore it was unconstitutional.
48:29
Well, okay, I'm not gonna, I'm not gonna defend that decision because it's no longer considered good law, and this is his point.
48:39
He says in the ensuing paragraph, Stone focuses entirely on the secular legislative purpose test, and it ends by reprising its holding, quote, we conclude that the Kentucky law violates the first part of the Lemon v.
48:56
Kurtzman test, and thus the establishment clause of the Constitution.
49:01
Moreover, the Supreme Court has repeatedly reaffirmed that stone is premised on the legislative purpose prong of lemon.
49:12
Um plaintiffs nevertheless insist that stone remains good law.
49:17
Never mind the court's abandonment of lemon and the Kennedy case 2025.
49:26
After all, he says it's well established that if a precedent of the Supreme Court appears to rest on reasons rejected in some other line of decisions, the lower court should follow the case which directly controls, leaving to this court the prerogative of overruling its own decisions.
49:47
But Stone doesn't rely on reasons that the Supreme Court has later rejected.
49:52
Stone relies on precedent that the Supreme Court has overturned.
49:57
What plaintiffs may really be suggesting is that.
50:00
That stone is still binding because the Supreme Court hasn't yet explicitly overturned stone by name.
50:07
But under that rule, he says Asian children could still be subject to racial segregation in public schools.
50:14
After all, the Supreme Court hasn't overturned Gong Lun v.
50:18
Rice by name either.
50:19
Then he talks about how that case had to do with uh racial segregation.
50:27
But we, you know, we've decided that you know Gong Lung is bad law, even though they didn't formally overturn Gong Lum.
50:37
He says, of course, this isn't how we apply Supreme Court precedent.
50:43
Uh, in short, uh the case that uh relied on Gong Lum is gone, the Plessy case.
50:52
And so too here lemon is gone.
50:54
So stone is gone also.
50:56
We're not bound by stone any more than we're bound by Gong Lung.
51:01
So the plaintiffs here are relying on the stone case.
51:06
And Ho here is saying that stone was relying on the lemon case and the lemon case, the judges, the Supreme Court judges in the Kennedy case a couple summers ago, they said that the lemon case is bad law.
51:23
It's no good.
51:24
Therefore, everything that relied on lemon moving forward is bad law.
51:28
This is what Ho is saying.
51:31
Plaintiffs offer a backup argument.
51:34
They hope to reanimate stone by reconceptualizing it as a coercion case.
51:40
But nothing in stone holds or even suggests that a passive display of the Ten Commandments is somehow coercive.
51:47
Indeed, the word coercion appears nowhere in stone.
51:50
There's a perfectly reasonable explanation for that omission, of course.
51:55
Stone turned on purpose, not coercion.
51:58
It focused on legislative motive, not public impact.
52:03
Later Supreme Court opinions have further affirmed that passive religious displays are not coercive.
52:10
And then he goes through and he cites them.
52:13
Moreover, we couldn't regard a passive display of the Ten Commandments as coercive without overturning established precedent, permitting the daily recitation of the Pledge of Allegiance in public schools.
52:26
After all, if a mere display is coercive, then surely an audible daily recitation of the Pledge of Allegiance every morning for one's entire public school education is too.
52:38
Notably, counsel for plaintiffs conceded during oral arguments that the daily recitation of the Pledge of Allegiance would not or would indeed present a problem under their theory of coercion.
52:53
Counsel, nevertheless, intimated that there's a difference of degree between the daily recitation of the Pledge of Allegiance and the passive display of the Ten Commandments.
53:03
But for what it's worth, I agree, says Ho.
53:06
Passive displays are even less coercive than being forced to listen every morning to the monotheistic and anti atheist pledge of allegiance.
53:16
Stone itself confirms this.
53:18
The Bible verses involved in this case are merely posted on the wall rather than read aloud.
53:25
Since the Pledge of Allegiance includes the phrase under God, recital of the pledge would appear to raise the same establishment clause issues as the invocation and benediction.
53:37
So there's no coercion, coercion in this case.
53:41
And that conclusion is fatal to all of plaintiff's First Amendment claims.
53:48
And then he wraps it up.
53:50
Once stone is removed, this case should be easy to dismiss.
53:55
Plaintiffs present no historical evidence that remotely suggests that our founders would have regarded a passive display of the Ten Commandments as an impermissible establishment of religion.
54:09
Our nation's founders didn't just permit religion in education.
54:14
They presumed that there would be religion in education.
54:18
Indeed, and this is where he just hits it out of the park.
54:21
Indeed, our founders firmly believed that our constitution wouldn't work without a religious people.
54:27
John Adams famous famously observed that our constitution was made only for a moral and religious people.
54:35
It is wholly inadequate to the government of any other.
54:39
John Jay similarly wrote that Providence has been pleased to give this one connected country to one united people professing the same religion, attached to the same principles of government.
54:53
Given the centrality of religion in our founder's conception of good citizenship.
55:05
The first Congress understood religious instruction to be a necessary element of education, providing in the Northwest ordinance of 1789 that religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.
55:25
Boom.
55:26
I love that he busted out the Northwest ordinance.
55:29
And then he breaks out the letter from Sam Adams to John Adams that we recite here all the time, that we have to renovate the age.
55:38
All right.
55:38
He says during the founding era, American children were typically educated in church-supported schools by private tutors.
55:46
And one of the most popular textbooks used in that education was the New England primer, which features extensive religious material, including poems, prayers, and lessons, including the Ten Commandments.
56:00
And then he cites, you know, where you can see that.
56:03
Okay.
56:05
He says we can vacate the preliminary injunction without addressing jurisdiction, because it is plain that the plaintiff cannot prevail on the merits.
56:15
So we can terminate the litigation now.
56:17
No further facts are needed to uphold the Louisiana Ten Commandments Law against plaintiffs' constitutional attacks.
56:26
The Louisiana law violates neither the establishment clause nor the free exercise clause.
56:32
It is fully consistent with the Constitution.
56:35
And what's more, it reinforces our founders' firm belief that the children of America should be educated about the religious foundations and traditions of our country.
56:47
We must never forget that as Americans, we are a religious people whose institutions presuppose a supreme being.
56:55
So when the state encourages religious instruction, it respects the religious nature of our people, accommodates their spiritual needs, and follows the best of our traditions.
57:05
And some, the Louisiana Ten Commandments Law is not just constitutional.
57:10
It affirms our nation's highest and most noble traditions.
57:15
Oh man.
57:17
Boom, scathing.
57:19
Somebody put Ho on the Supreme Court.
57:21
That's all I gotta say about it.
57:23
All right, my friends, there it is.
57:25
The um the preliminary injunction here has uh has been foreclosed upon.
57:32
All right, we will uh we will look to see where this goes in the future, but that's all the time we have for today.
57:37
Listen, encourage your friends and family to get on the dean's list.
57:41
Let's unite to renovate the age.