Texas passed a law mandating that schools must display the Ten Commandments in classrooms. Because nothing says, “we’re not establishing a religion” like forcing students to learn under the watchful eye of a legislature’s preferred scripture.
The law inspired a swift legal challenge because the First Amendment is, to its credit, unambiguous on this point. And this challenge carried the day until it ran into a divided Fifth Circuit. In Nathan v. Alamo Heights Independent School District, the en banc Fifth Circuit decided 9-8 that, when it talks about protecting the inviolable right of parents to direct the religious education of their own children from state-sponsored interference, it means the inviolable right of parents to teach their kids about Texas Jesus.
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And quite literally “Texas Jesus,” because as noted by dissenters, the statute mandates a specific Protestant translation of the Ten Commandments with substantive deviations from even other Judeo-Christian traditions.
To recap, schools teaching kids not to bully gay people equals bad, public schools teaching kids the Protestant Old Testament equals good. Second graders can’t know that gay people exist, but they must understand adultery, by gum!
Judge Stuart Kyle Duncan, last seen getting frazzled trying to answer questions from Stanford Law students, wrote the majority opinion and it’s quite the tour de farce. Citing Kennedy, the case where the Supreme Court got caught falsifying the factual record, Duncan rejects on point precedent for having been decided under the abandoned Lemon test. Could the Supreme Court’s ahistorical new standard also prohibit a state law requiring the Ten Commandments in public schools? Kennedy was, after all, in large part dependent on the idea that the school policy curbed a football coach’s free exercise rights — an issue not implicated here. Well, we’ll never know, as Duncan’s analysis is that without Lemon‘s three-prong test (and, specifically, its emphasis on a law having a secular purpose), there are no meaningful limits at all on state promotion of religion as long as no student is forced into religious exercise or observance or catechized or taught the text.
One might wonder what the point of the law even is if the state is so confident that students will never even notice these displays. The Fifth Circuit responds: shut up, nerd.
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As for infringing the free exercise rights of parents trying to raise their children, the majority handwaves that students don’t have to believe the display. I, for one, am looking forward to the response from the state of Texas when a teacher hangs a Cliff’s Notes version of Sharia law next to the Commandments and points out that no student is required to believe it:
Duncan’s attempt to forge a new explanation of the Establishment Clause follows the familiar pattern of selectively citing secondary source quasi-history. It’s becoming a cottage industry for conservative former law clerks, without training in the historical method, to compile a string of historical factoids into an article, publish it in some student-edited journal, and then watch judges run with it as though it’s historical scholarship laying out a definitive account.
Which, of course, invites some tension when the real historians show up with receipts.
The correct analysis, as the Supreme Court has explained, is to ask whether a challenged law shares the “hallmarks of religious establishments the framers sought to prohibit when they adopted the First Amendment.” Kennedy, 597 U.S. at 537; see also Hilsenrath, 136 F.4th at 491 n.54 (asking whether plaintiffs have “prov[en] a set of facts that would have historically been understood as an establishment of religion”).
Emphasis added.
The district court allowed expert testimony from religious scholars and historians, a prudent decision if one actually believed that the standard involves figuring out what “would have historically been understood as an establishment of religion.” But that testimony did not work out for the majority’s preordained outcome, and so they needed Duncan to handwave it all away.
What the founding generation understood as an establishment of religion is a legal question to be decided by a court, not a “fact” question to be decided by experts, no matter how credentialed.
This is a mere two paragraphs removed from the quote about having to prove “a set of facts.” Beyond parody.
So how can the majority navigate this hybrid not-a-fact-set-of-facts? As always, “JD Hubris” comes to the rescue. For once you have a law degree, you can be an expert in every subject! Indeed, your law school education makes you even more of an expert than someone who devoted their entire professional career to a subject.
[Judges] do so by consulting articles, books, and historical sources and bringing their own independent judgment to bear on them—not by
appointing an “expert,” whose “findings” are insulated by clear-error review on appeal.
It’s the “IvE dOnE mY oWn ReSeArCh” meme made flesh.
But, in fairness to Duncan, without committing the air quotes to print, this sentence might read as a serious person’s analysis. We would be remiss not to thank him for being honest.
Of course, he’s unintentionally hit on the problem with originalism. In the effort to disguise that they’re just reverse engineering decisions to match their policy priorities, they contrived a factual basis for their whole interpretive project. By dressing it up this way, they tried to cynically borrow legitimacy by claiming their philosophy was “fact,” but they never had a plan to deal with the reality that factual questions invite the need for historians who practice with the sort of intellectual rigor that eludes Duncan.
This is where he should retreat to some sort of neo-textualism and try to argue — somehow — that a state law forcing public schools to display the Ten Commandments does not amount to an official expression of religion. Instead, he tries to square-peg-round-hole reject the factual record in a case about… a set of facts.
Plaintiffs would rely on this practice to resolve “fact issues” about the Ten Commandments’ role in American history. But they confuse the kind of facts experts can help determine (so-called “adjudicative facts”) from facts that are decided by courts (so-called “legislative facts”). See, e.g., Moore v. Madigan, 702 F.3d 933, 942 (7th Cir. 2012) (distinguishing “‘legislative facts,’ which . . . bear on the justification for legislation, as distinct from facts concerning the conduct of parties in a particular case (‘adjudicative facts’)” (citing Fed. R. Evid. 201(a))). As Judge Posner has explained, “Only adjudicative facts are determined in trials, and only legislative facts are relevant to the constitutionality of [a challenged law].”
I am once again begging Fifth Circuit judges to ACTUALLY READ THE CASES THEY CITE. This came up in Rahimi, when Judge Ho wrote a concurrence citing a pair of cases that actually concluded the opposite way.
Here, Duncan cites Judge Posner — hoping to bask in the borrowed glory of a respected jurist — to categorize the historical record as “legislative facts,” which, despite the name, pose a question of law and not fact.
Except, that’s not what Posner’s decision says.
Moore v. Madigan challenged an Illinois gun regulation. Writing for the majority, Judge Posner made two separate conclusions. Regarding history, Posner wrote that the Seventh Circuit could not relitigate the history of the Second Amendment in light of Heller and McDonald — for better or worse. “The Supreme Court rejected the argument,” Posner wrote. “The appellees ask us to repudiate the Court’s historical analysis. That we can’t do.” Posner does not dismiss the analysis of expert historians as improper — he writes that the matter is settled above his pay grade.
So what are “legislative facts?” After establishing that the Seventh Circuit would not revisit the historical underpinnings of the Second Amendment, Posner’s opinion concludes that there’s no further evidentiary issue for a trial court to determine, because “The key legislative facts in this case are the effects of the Illinois law; the state has failed to show that those effects are positive.” Continuing, Judge Posner explains that, “Illinois had to provide us with more than merely a rational basis for believing that its uniquely sweeping ban is justified by an increase in public safety. It has failed to meet this burden.”
Note how the “legislative facts” were not the history of the right.
The generous reading of Duncan invoking Moore v. Madigan is that he’s just trying to bootstrap history onto this convenient category of non-fact-facts. But to do that requires characterizing the relevant historical issue as an assessment of the Framers’ legislative intent. But true originalists have spent years telling us that legislative intent is the wrong inquiry, instead elevating “original public meaning” or a more vague concept of “history and tradition.” And they did this for good reason: legislative intent narrows the paper trail too much. Expanding the historical inquiry to the public at large makes it a lot easier to cherry pick historical nuggets from long-forgotten pamphleteers and sepia-toned newspapers.
The downside is that it requires judges to treat history the way Richard Epstein treats epidemiology — by declaring, based on pure legal intuition, that COVID wouldn’t kill more than 500 people. Pinning the law to history was supposed to provide a veneer of credibility. Telling the public that judges will “bring[] their own independent judgment to bear” on writing, or rewriting, history throws that out the window. It is an empty husk at that point, stripped of its already flimsy faux intellectual justifications.
(Full opinion on the next page…)
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.