Christian Edmonds (Regent University – Regent University School of Law) has posted Chipping Away at Stone: Rethinking the Establishment Clause After Kennedy on SSRN. Here is the abstract:
In 2024, Louisiana enacted H.B. 71, requiring every public-school classroom to display the Ten Commandments in large, legible font as the “central focus” of a framed poster. The law reignited debate: critics denounced it as a breach of the “wall of separation” between church and state, while supporters invoked Kennedy v. Bremerton School District, which abandoned judicial tests of purpose and effect in favor of a history-and-tradition approach. Under that framework, they argue, H.B. 71 reflects rather than violates the nation’s legal and moral heritage.
The Fifth Circuit sided with the law’s critics. In Roake v. Brumley, it struck down H.B. 71 by treating Stone v. Graham, a thin per curiam opinion rooted in abandoned doctrine, as binding precedent. That reliance allowed the panel to bypass the historical analysis Kennedy requires. Instead, Roake offered only a cursory history-and-tradition discussion, framed so narrowly—limited to permanent Ten Commandments postings in classrooms—that the outcome was effectively preordained.
Still, the blame cannot rest entirely with the Fifth Circuit. The Supreme Court in Kennedy gestured toward history and tradition but gave only the barest outline of what that test entails. It left unanswered whether courts should focus on coercion, on founding-era analogues, or on structural hallmarks. Unsurprisingly, the circuits have fractured: some lean heavily on coercion, others rely on outdated cases, and still others mix elements of both. Against that backdrop of doctrinal ambiguity, the persistence of Stone has only deepened the confusion.
This Article offers a corrective framework. Step one asks whether a government practice implicates any of the six “hallmarks” of an established religion identified in Shurtleff v. Boston. If none are present, the practice is presumed constitutional. Step two then tests that presumption against history, applying the “relevantly similar” standard from United States v. Rahimi. Under this approach, courts should ask whether the challenged action and its historical analogues share a comparable purpose and mechanism. When no hallmark is implicated, relevant similarity to founding-era traditions suffices to sustain the practice; when a hallmark is present, the government must point to a close historical analogue with strongly similar justifications and limits.
Applied to H.B. 71, the framework confirms that the statute is constitutional. It imposes no compulsion or punishment, delegates no authority to a church, and favors no sect. Instead, it reflects the long American tradition of teaching moral and religious principles, including the Ten Commandments, as part of civic formation in schools. Recognizing this history shows why Stone can no longer serve as controlling precedent and why the Fifth Circuit’s reliance on it was misplaced. Coherence in Establishment Clause doctrine will come only when courts abandon obsolete tests and implement Kennedy’s historical approach through a clear, structured inquiry.