Scholarly bibliography

Two of the most cited Religion Clauses scholars of the last generation survey Louisiana's identical-twin statute to Texas S.B. 10 and make three arguments. First, Stone v. Graham remains binding because the Supreme Court has never overruled it. Second, Kennedy v. Bremerton abandoned the Lemon test but did not thereby dissolve every decision that once cited Lemon. Third, the Gorsuch “historical hallmarks” framework from Shurtleff cannot in good faith be read to ratify a compulsory classroom display that has no pre-Founding, Founding-era, or even early-Republic analogue. They argue classroom posters are coercive in the constitutional sense recognized in Lee v. Weisman and Santa Fe.

The single most on-point piece of scholarship in existence. It was written in anticipation of precisely this litigation.

Expressly cited in the Ramirez principal dissent and quoted at length in the brief's Scholarly Criticism section for the argument that the majority “silently overrules” Stone in violation of Rodriguez de Quijas. The Duncan majority engages with Lupu & Tuttle only obliquely — Part III, footnote 42 dismisses “academic commentary insisting Stone lives on” without naming them.

McGreal's intervention is historical rather than doctrinal. He traces the specific religious-coercion anxieties that animated Madison and Jefferson's Virginia disestablishment campaign back to Reformation-era Protestant-Catholic contests over scriptural authority — and argues that the choice of the King James Version of the Decalogue is itself a denominational preference of the kind Larson v. Valente condemns. Even under a robust originalist framework, he concludes, a statute that picks a Protestant translation and displays it in every classroom is a paradigm case of the very “religious test” the Founders feared.

McGreal goes directly to the Larson / denominational-preference fault line that Judge Higginson's dissent identifies as the majority's weakest point.

Expressly cited in the Higginson dissent, which lifts McGreal's framing of the KJV choice as a “coerced confession of Protestant scriptural authority.” Also quoted in the brief's Scholarly Criticism section.

Using corpus linguistics over eighteenth-century American English, Barclay and her co-authors argue that at the Founding, “establishment of religion” had a specific and relatively narrow meaning — it referred to state compulsion, taxation, licensing, or penalty in support of a specific church, not to ceremonial deism or passive governmental acknowledgment of religious heritage. The Establishment Clause, on their data, was not originally understood to forbid accommodation, acknowledgment, or even sectarian public display absent a compulsion element.

The academic architecture underlying Justice Gorsuch's Shurtleff concurrence — which is in turn the doctrinal hinge the Duncan majority rests on.

Not cited by name. But the Duncan majority's rearticulation of the six-hallmark test — and the Ho concurrence's pointed claim that passive displays are not “establishments” in the original sense — closely track Barclay's methodology. The Ramirez dissent's footnote 31 pushes back on the corpus-linguistic premises, arguing classroom compulsion is precisely the kind of coercion that does count as establishment on Barclay's own definition.

Muñoz — a leading originalist Religion Clauses scholar — provides the definitive academic treatment of the McCreary County / Van Orden split-decision problem: why the same display can be unconstitutional inside a courthouse and constitutional on a statehouse lawn. He argues that the “purpose” and “endorsement” prongs invited precisely this arbitrariness, and that any stable doctrine must instead rest on (a) coercion and (b) denominational neutrality. He specifically flags the classroom as the harder case because it layers coercion onto a context where Stone already controls.

Muñoz wrote the leading scholarly blueprint for what a post-Lemon display doctrine would need to do to handle classrooms — and Nathan is the first en banc decision that actually attempts that doctrine.

Not cited by name. But the Oldham partial concurrence (joined by Willett) essentially reproduces Muñoz's coercion-plus-neutrality restructuring, arguing that the majority should have rested on a narrower coercion rationale rather than declaring Stone abrogated. The Southwick dissent likewise invokes Muñoz's observation that the classroom is constitutionally unique.

If the federal Establishment Clause is read as narrowly as Kennedy v. Bremerton now suggests, Corbin argues, the meaningful constitutional protection against religious coercion in schools will shift to state constitutions — many of which contain “no-aid” clauses (Blaine and non-Blaine) far more stringent than the First Amendment. She specifically discusses Texas's Article I, § 6 (“no human authority ought, in any case whatever, to control or interfere with the rights of conscience in matters of religion”) and argues it provides an independent basis for invalidating classroom Decalogue statutes regardless of what the federal courts do.

Corbin names the doctrinal escape hatch that becomes crucial once the Fifth Circuit forecloses the federal Establishment Clause claim — exactly the path plaintiffs' counsel has signaled they may pursue on remand.

Not cited. But the Haynes dissent gestures toward Corbin's point when it notes that “whatever the federal Constitution now permits, Texas's own Bill of Rights may forbid” — a line that tracks her argument almost verbatim. Also discussed in the brief's Future Applications hypotheticals, specifically the fence-sitter on parallel state-constitutional litigation.