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"stt_transcript": "Good morning, and may it please the court. This court should reverse because the district court's analysis is flawed across the board. The district court wrongly concluded that original plaintiffs had standing based on mere speculation that a sufficient quantity of displays would be donated, that one would be posted in plaintiff's classroom at some point in the future, and that a future display would offend or coerce plaintiffs in some way, despite not knowing the content of the display or the surrounding context. What's more, the district court erred on the merits. Act 573's requirement that schools put a historical Ten Commandments poster on classroom walls does not constitute a religious establishment or burden-free exercise rights. Regarding the merits of the Establishment Clause claim, the first disputed question is what test applies. Kennedy answers this question. The Supreme Court said, in place of Lemon and the endorsement test, the Establishment Clause must be interpreted by reference to historical practices and understandings. That's on page 535. The court then went on to reiterate, at page 536, that an analysis focused on original meaning and history is the rule, rather than some exception within the court's Establishment Clause jurisprudence. Kennedy thus abrogated Lemon and its progeny. That means the district court erred by applying Stone, because Stone is Lemon's test. Stone expressly applied Lemon, and nothing but Lemon, as the Fifth Circuit recognized in the en banc Nathan decision. The normal rule is that the Supreme Court gets to overrule its own precedent, and absent that and its progeny and its offspring in Kennedy, would we be singing a different tune? Or do you rely pretty much exclusively on the fact that it's broader than a normal overruling? It is broader than a normal overruling, Your Honor, and I think Kennedy itself is also constructive. In that case, the Supreme Court expressly criticized the district court and the Ninth Circuit for not recognizing that it had already abandoned Lemon, and for not heeding its guidance in cases like Town of Greece versus Galway and American Legion, even though those cases involved legislative prayer and a monument, so not prayer on a high school football field. It still said, you kind of missed. This is the new rule. This is the new test. I think that also shows that Lemon and its progeny has been completely abandoned. Do you have any idea if Stone has been cited favorably by the Supreme Court elsewhere? Because that would give me some pause, even with the broad language of Kennedy. I'm unaware of it being cited favorably since Kennedy, for sure, and even after Stone, when it talked about, when the Supreme Court mentioned Stone, it described how its holding was that it had a purely secular purpose, and so acknowledging that it was applying the Lemon test, and indeed, even if Stone somehow was binding in identical circumstances, these aren't identical circumstances here. The law is different, and so to apply Stone would be to extend Lemon's test, and you see that in the district court's analysis here. In trying to assess whether Stone applied or not, it was assessing what it perceived to be the purpose of Arkansas' law, and that shows that Stone is Lemon, and it erred by applying Lemon's test rather than the binding historical test. And under that test, plaintiffs needed to prove that Act 573 resembles the hallmarks of a religious establishment, and they failed to do so, requiring schools to post a historical representation of the Ten Commandments on a classroom wall, if donated, doesn't resemble a single hallmark of a religious establishment. And the Fifth Circuit recognized this when it rejected an establishment clause challenge to a similar law. It explained in Nathan that requiring historical posters on a wall that have some religious significance, quote, looks nothing like a historical religious establishment. That's because it doesn't exert control over a church's doctrine or personnel, punish religious dissenters for their exercise, or do any of those things that the Supreme Court has recognized would be a hallmark of religious establishment. Counsel, the district court, in addition to relying on Stone, also focused on whether the posting of the Ten Commandments was a historical practice in public schools. Is that the proper historical analysis? It's not, Your Honor. As both the Supreme Court recognized and this court recognized in New Doe Child, it can't, you know a practice or an act does not violate the Constitution. If there is an identical historical analog, that kind of ends the test. How, if there isn't, then the court looks to the other relevant historical practices and those historical hallmarks to see whether it resembles an establishment. And so here, they can't show that it looks anything like a religious establishment. And indeed, there's a lot in the history and tradition that shows Ten Commandments and the Bible were used throughout schools, including after there were public schools, both in textbooks and things of that nature. Moreover, as several scholars and Justice Gorsuch noted in his short-lived concurrence, a close look at the hallmarks and our history reveals that no one at the time of the founding is recorded as arguing that the use of religious symbols in public context was a form of religious establishment. And so having a poster on a wall looks nothing like what would be considered a religious establishment. And plaintiffs don't point to any other historical hallmark or something that it would resemble. So even assuming the six historical hallmarks are not an exhaustive test, they still would have the burden to show that there's another historical hallmark that it resembles as the Third Circuit recognized in Hills and Wrath, and they have not carried that burden. That's why plaintiffs fall back to arguing that the posters are coercive. But coercion isn't a free-floating test. It's tethered to the historical hallmarks. The historical hallmarks are how you assess whether there is that sort of legal coercion that would make it a religious establishment, and that doesn't exist here. As the Fifth Circuit noted in Nathan, the displays impose neither penalty nor sanction, formal or informal, on students. Students are free to ignore the Ten Commandments or laugh at them. So there's not coercion. Are there any other requirements in state law that require a particular poster or board to be put up in classrooms, say a map of Arkansas or something like that? So there is a requirement that the national motto be posted. And so I'm aware of that. I'm unaware of other things of that nature. It is also... What about a flag? I think that might also... Is there a requirement that either the flag of the United States or the Arkansas flag be displayed? Not that I'm aware of. But as I said, at Arkansas Code Annotated 1-4-133, it also does require the national motto. And on the coercion point... Is that the same act that contains the Ten Commandments requirement? It's the same code provision, Your Honor. However, the act is what amended that code provision. So it wasn't in the same Act 573. But it is the same. The Ten Commandments portion amended the pre-existing act that contained the national motto requirement? Yes, Your Honor. To follow up, you know, there are a lot of translations, versions of the Old Testament and the New Testament, for that matter. Does the record contain any statement or indication as to what... If the language here in this act is a particular translation of the Old Testament? So the expert report does provide testimony looking at different versions, such as the and it resembles a lot of those versions. So he was unable to determine where it derived from. What we do know, however, is that the text is nearly identical to the text that was used on the monument on Texas State Capitol grounds in Van Orden. The only difference is that some of the capitalization is different. It's identical to that version and the version in this court's opinion in the city of Platt Smith. And in both those cases, the courts recognized that it was a non-sectarian version. And so I think that demonstrates, if this court were to apply the Stone-Lemon Test for some reason, which it should not, that the purpose was to acknowledge the Ten Commandments' historical significance, not to proselytize or advance any version that is closely aligned with a specific faith tradition. Counsel, if we were still under the Lemon Test, I think the location in a public school might differ from a courthouse lawn, for example. It is a different location, Your Honor. However, it still is not coercive in any way. The students are still free to ignore it or disregard it. Indeed, the plaintiffs admit at R. Dock 179 at 6 that the act does not require the Ten Commandments to be incorporated into the public school curriculum at all and that there's no requirement for teachers, school officials, or students to interact with, bring attention to, or even acknowledge the posters in any way. So there's still that not, it's not coercive. And really what plaintiffs are trying to do is repackage Lemon's endorsement offshoot or the advancement prong as an offshoot of coercion, but that's just not supported by the Supreme Court's precedent. And it's nothing like the school prayer cases that the Supreme Court was careful to limit. In Lee, it said that its holding was cabined and limited to the fact that it was pressure to participate in a formal religious exercise. And Santa Fe makes the same point. And several circuits have also acknowledged that Lee and Santa Fe are narrowly circumscribed to the school prayer context when assessing challenges to the Pledge of Allegiance. In the First Circuit's Freedom from Religion Foundation case, as well as the Fourth Circuit's Myers opinion and the Ninth Circuit Newdow opinion, they all recognize that Lee is limited to that application of formal religious exercise and that the recitation of the pledge in front of students every day is not coercive because it's not a religious activity and it's not coercing them to participate. Students can sit quietly during the pledge and there'll be no inference that they are participating or agreeing, whereas in the prayers, their silence could potentially be interpreted as their agreement. And sitting in a classroom with a poster on the wall doesn't indicate any sort of agreement or acquiescence to that. That line of argument, I believe, goes both to your free exercise and establishment clause arguments, doesn't it? It does, Your Honor, to the extent that they also argue coercion as to their free exercise claim. I wanted to have you address the free exercise clause briefly, if you could. Your argument seems to rely fairly heavily on Employment Division versus Smith, and I was wondering if that case were to be overturned, does your argument falter? It doesn't, Your Honor, for two reasons. One is that plaintiffs don't even really dispute that it's neutral and generally applicable, so they forfeited that argument. And this court's opinion in New Doe Child also indicates that it is that sort of neutral and generally applicable. And also, we present arguments why it doesn't fail, even assuming the Mahmoud or Yoder test under the Mahmoud or Yoder test, and that's because there is no burden on them. The Act 573 doesn't compel plaintiffs to do anything or refrain from doing anything that would violate their beliefs. Just like having, in God we trust, emblazoned on money did not burden plaintiffs' free exercise rights in New Doe Child, having a Ten Commandments poster on the wall doesn't burden plaintiffs' free exercise rights here. How does neutral work here? This is one thing that I think is very, very difficult, which is most of the time it's limiting religious activity with free exercise. But here you actually have religious activity coming into a classroom. So I'm really struggling. I couldn't find a lot of cases where we have that scenario. And I'm trying to figure out how neutral works here. Yes, Your Honor. So I think New Doe Child is the most helpful because there was also a free exercise challenge and plaintiffs argued it wasn't neutral because it was referred to monotheism and that they were continually confronted with this religious language. But this court said that it was neutral and generally applicable because it applied to everyone in the same way. And so I think the same would be true here and even more so because it's not, again, it is a passive poster on the wall that's not coercing or requiring the students to do anything. Whereas in that case, the plaintiffs argued they were continually confronted with that language that they found offensive and that they were being compelled to advance that religious message and proselytize with every transaction they engaged in. And this court still found that there wasn't a burden there or under the free exercise clause or a substantial burden under ERIFRA. Well, I just want to press you because when you're talking about neutrality, you're using the generally applicable language that applies to everybody. But I'm not so sure that I still have a good understanding of what your definition of neutral is. Here you have a particular version of the Ten Commandments that the state picked. And maybe we conclude it's nonsectarian and all of that. But I'm just trying to figure out how that's neutral as opposed to some other law-giving poster that you put up on the wall. So now it seems like it's conflating a little bit of free exercise with the Establishment Clause and particularly the Larson and Catholic Charity line of cases. However, those cases don't apply in this context. As if the circuit recognized in Nathan prohibitions on preferring one religious denomination or religion over non-religion has no application to the government use of religious language or symbolism. And that's also true in the Supreme Court's decision in Lynch. They reject that argument because obviously a nativity scene could be perceived as favoring Christianity over other religions. And they said that that test doesn't apply in that context. And this court found the same in Udo, Talbot, and City of Plattsmouth. Because if all religious displays had to be completely nonsectarian or non-denominational, then there could be no government acknowledgment of religion in public squares. And we know that's not the law. We know that it doesn't have to be purged. I see I'm running out of time. So I'll reserve the rest of the time for... Just one follow-up. Did everyone agree below the parties, the court, that what the Act mandates here is a paraphrase of what we would refer to as the Ten Commandments? It must be said the record indicated no particular recognized version of the Old Testament. So is this a paraphrase, for lack of a better word? I believe it was understated by both sides that it's not identical to what you would in any version of the Scripture. However, plaintiffs' experts believed that it was taken from the New King James Version, whereas our expert explained it wasn't. So there is that dispute there. But as Plaintiff's Brief acknowledges, they would even say that perhaps it was an attempt to come up with a nonsectarian version, but that it failed. Again, our point is, at the end of the day, it doesn't matter. Because when it comes to religious displays, there's not that requirement that they be non-denominational or have no preference at all. To the extent it matters, it is only to show that the intent of the Act was not to proselytize, but to acknowledge the historical significance. So you think that, do I understand you to say that if the Act had just lifted, and there's no dispute, it just lifted Exodus 20 verses 3 through 17 from the King James Version or some other recognized version, it doesn't really make a difference? No, Your Honor. It wouldn't. And indeed, Ohio's motto, with God all things are possible, is expressly lifted from Matthew, and that didn't change the analysis. There's, I believe, Lincoln's memorial has a passage of Scripture taken from the New King James Version. That doesn't change the analysis. And I believe the Fifth Circuit's opinion discusses this as well, as does the oral argument where there's a colloquy about some of this. If there are no further questions, I'll reserve the rest of my time for rebuttal. Thank you. Thank you. All right, Mr. Youngwood, you may proceed when you're ready. Thank you, Your Honors. And may it please the Court, Jonathan Youngwood, standing before you on behalf of 10 families living in six districts, families from various traditions, Jewish, Unitarian, Humanist, Catholic, Methodist, non-religious, agnostic, atheist. Under this Act, under Act 573, from kindergarten to senior year, from math to Spanish to biology, a student entering an Arkansas public school will face one unavoidable constant, government-mandated religious instruction in every single classroom and library. Schools use their limited classroom walls to teach. This is instruction. These are, after all, commandments. And they are directly religious. Okay, let me stop you there and ask for some clarification. And I'm just curious, what exactly is objected to here? And I say that because if you take the last, I guess, five lines from this mandated text, they are, thou shalt not kill, thou shalt not commit adultery, thou shalt not steal, thou shalt not bear false witness, thou shalt not covet. Are those, are those objected to by the appellees? Your Honor, what's the heart of both the Free Exercise and the Establishment Clause claim, among other things, is the coercive nature of imposing religious instruction on these children. And while some of what you've listed there, maybe most of what you just read, Your Honor, do not directly cite God or point or instruct the children that there is only one God. They come in the context of a biblical verse. As Judge Beery, who heard the Nathan case, the first Texas case, noted, there are other ways. There are ways to teach children rules. But what if you just took those lines and you, and you stated them in a little different, a different way, and they just said, you should not kill, you should not commit adultery, you should not steal, et cetera. Surely the appellees have no objections to those, to those statements. Your Honor, if you, if you disembody parts of this Bible verse and took it away from being a Bible verse and didn't say it was from the Bible and call it the Ten Commandments, it would definitely be a different statute and a different case. I can agree with that. Well, that's kind of getting, getting to what I'm wondering here. What is, what is really objected to? Is it, is it that there's this, the three words, the Ten Commandments followed by text? And so it really doesn't make any difference what the text is. You just see, you just see it on the wall and you see the word Ten Commandments. And so, oh, that's, that's, that's religious. Is that the, is that the idea? Or is it that, is it the content here of this mandated text? I think, Your Honor, it's both. It's putting Exodus 20 or certain verses of Exodus 20 in a certain version. It is the King James Version. Judge Brooks found that as a fact. And there was really unrebutted expert testimony on that. But whether it was the King James Version or a Jewish version, it's, it's our plaintiffs have testified. It is not what they recognize. Counsel, this court will have to apply whatever analysis we use in this case in other contexts. Could a public school be required to post a copy of the Pledge of Allegiance on the wall? It says we are one nation under God. Yes, Your Honor. And I think that would be a very different case. There's a whole line of cases under God. This court has cases about In God We Trust. As counsel pointed out, In God We Trust is on Arkansas school walls. To my knowledge, that part of the statute, which is older, has not been challenged. You told us earlier that this was instruction. And so if the Ten Commandments are instruction, wouldn't the Pledge of Allegiance also be No, Your Honor. I think the Pledge of Allegiance is different from something listed as Ten Commandments that have specific dictates that you must follow. I also think that if you were to see the Pledge of Allegiance as instructive, the text of it isn't telling them what to do like this is. If you were, other than the under God, there are no religious aspects of it. So I don't know that it would be a First Amendment challenge. And the courts, this court and others, have treated Under God and In God We Trust as ceremonial deism or motto in a whole different line of cases. And it makes sense. It's a far cry because you asked how it would apply to other cases. It's a far cry from posting a very prescriptive, normative, and direct Bible verse. Do we have to agree with you on the instruction point for you to win? And the reason why I ask this is because I remember in my high school and elementary school years, a lot of things were posted on the wall. Go to the chess club meeting at 4 p.m. And I never viewed that as instruction. I get it. This will be there the whole time. But my point is, my understanding of this is there's no requirement, nothing said about whether there's any instruction. And in fact, it just assumes that the poster is going to be put on the wall. So how can we say that that's instruction? And do you need that to win? I don't think I need it to win. So why don't I start with that? And then if you allow me, I'll go back to why it clearly is instruction, which makes it easier or different for me to win. If you look at, and I don't raise this as a purpose or an endorsement part, I'm not arguing Lemon. But if you look at the legislative statements that the state put into the record here, the full version of it, you can see that the legislators wanted to, they use different words. They use exposure. They use see it visually. And they say the reasons are because our children need more, need more religion. And mostly they refer to Christianity in their lives and the world will be a better place if they can have more Christianity in their lives. The purpose they are saying, and I don't use it as a Lemon purpose. I use it as an educational purpose, is to expose these children to this word of God and to these dictates and to these commandments. And whether you call that instruction or exposure, it is there so that it is read and that it is absorbed and that because of the nature of what it says. And so it's different, Your Honor, than a flag that might be required to be put up in the Arkansas schools. This is giving a lesson. And it's just as much a lesson if you go under free exercise as the lesson, in fact, I'd say more because it's ubiquitous and throughout and not just once a year, than the lesson that the parents in Mahmoud succeeded on saying their children shouldn't have to be part of. It is telling them what to do. Wouldn't it be entirely appropriate for there be instruction that one should not kill? Yes, instruction that one should not kill is a decent instruction, Your Honor. And you could say that about half of this text, couldn't you? I think some of our clients might, it depends which ones we could go to. I think we can all agree that, and actually, Your Honor, not to knit, but murder and kill are different. And that's one of the differences between the Jewish version that, according to our clients in this version, killing is generally not good. Murder is never good. I agree with you on that. I think some of these, and particularly the ones that are telling people who God is, that there shall be only one God, they're telling them not to take the Lord's name in vain. Those are only religious. They are only monotheistic. They are, we submit in our expert, they are Protestant. They are King James Bible. But disagree with me on that. I don't, I think the record's clear. They are not Muslim. They are not atheist. They are not Taoist. I can go through the whole world religions that exist in Arkansas. Let me ask you about another historical example. There are other historical texts, some of which have historical meaning in terms of the development of the law. On the Nebraska State Capitol, for example, there is a depiction of the Ten Commandments and also the Code of Hammurabi. Could a public school be required to post a copy of the Code of Hammurabi? Your Honor, I don't know enough about the Code of Hammurabi and know that if it has a religious aspect and so forth would be subject. There are numerous references to Babylonian gods in the Code of Hammurabi. Um, I think it might have the same problem if it was put ubiquitously in the schools, just like the Lord's Prayer would or other well-recognized and, and don't get me wrong, worthy of, of devotion, worthy of respect for some, the center of their lives. The concern here, the concern here is that it's being put ubiquitously in a public school with children in every classroom. Disregarding stones dictate, which has nothing to do with lemon, that if it's going to be there, it needs to be part of the curriculum in an appropriate way. Our plaintiffs, one testified that, um, their concern for their child is not that they learn what the Ten Commandments are, but if they learn it has to be tied as stone requires, properly to curriculum. So are you saying that stone is distinguishable from lemon in some way? Well, um, stone and your honor, thank you. Cause I would like to specifically, um, discuss stone and whether or not stone is, is good law. Um, stone does cite lemon, I think two times, maybe three. It also cites Shem six times and Engel once. And your honor asked her the Supreme Court cases that talk about this. Well, the Van Orden for judge majority written by judge Rehnquist is very explicit in interpreting stone and distinguishing it from the facts of that monument case. And it notes in describing what is stone because, um, Van Orden is not a, is not a lemon case. It says stone is a Shemp Engel case. And it is when you read it and it follows. Isn't it, isn't it really prong one of lemon? I agree that it cites other things, but in the end, the conclusion is that it fails prong one of lemon. At least that's how I read it. That's the last sentence of the, of the decision, your honor. But it comes after extensive analysis, all being the short decisions. I don't want to go too far on the extensive of Shemp and reference to Engel. And then when you have the Supreme Court itself through his chief justice at the time, describing what years have passed, what was stone, no reference to lemon. And it goes back to your honor, whether you agree with stone or not. And I'm prepared to go through the history analysis as well. It's very well-versed in our brief. It's complicated, but I think it's clear. And we're clearly right under Kennedy too. But with all respect, your honor, it's not for this court. It's it, you have Van Orden telling you, it's not a lemon case. It says it's a Shemp Engel case. And then you go to the whole line of when Kennedy wrote about the history or re-articulated the history, because you can see that going back through other cases too, that are almost parallel with lemon, right? There's these multiple streams of cases. Kennedy itself cites Santa Fe, which is a lemon case. And it cites Lee, which expressly said it wasn't going to address whether lemon was good law. So you've got those two cases. And then more recent, you have Mahmoud itself, which cites Edwards, which is a lemon case. But Kennedy does say, I mean, this is different from just about any overruling I can remember, where it talks about, I think it was the Ninth Circuit applies lemon in its progeny, and then it overrules lemon and its offshoots. I think I'm phrasing that right. And so that to me suggests that anything that relied exclusively on lemon is no longer good law. But Your Honor, I guess I disagree respectfully with that reading. And why do I? I think the offshoot they're referring to is endorsement, which isn't one of the original three prongs. I think that's the primary offshoot. And they are certainly telling courts, and we're not asking you before you here to apply any of the three lemon prongs or the offshoots endorsement. But it's a much different question to say, does that mean every case that the Supreme Court or an appellate court previously used lemon or referenced lemon is now completely gone without the Supreme Court's guidance? First of all, there's a long line of cases, including this court's case in Brown, and they're all cited in the briefs that say, no, that's not your problem. But I don't think it's nearly as broad of a category as you suggested it is. Why can't we just say, we're the holding, right? You said the last line of Stone, the holding is prong one. We're the holding is a lemon holding. It's no longer a good law. Not where lemon's been cited, but where the holding relies on lemon. And I would submit to your honor that Van Orden says that's not the basis for the decision. And so if the only thing cited in the case was lemon, this might be a hard argument. I'd make the same argument. I'd say it's for the Supreme Court. But Edwards relies on lemon. It's a lemon case. We know those must still be good law because the Supreme Court in Kennedy itself cites one, and in Mahmoud cites the other. They don't cite Stone, but there have been circuit courts. They're on pages 22 and 23 of our brief that have relied on, have recited Stone, or looked at other lemon cases post-Kennedy, and not simply said, oh, we have to redo this. There's a whole world of cases out there, your honor, that rely on lemon. And until the Supreme Court says so, they're still good law. But this is probably the easiest one and the most direct one, because you have Van Orden itself telling you years after Stone that Stone is an Engle-Shemp case. And I don't hear anyone to say Engle or Shemp or bad law or Santa Fe or Edwards. But that was a plurality, right? I think you said majority earlier when there's only four justices. There were four justices, and then Justice Breyer wrote a separate decision to make the fifth. That is correct. But we had the four justices signing on to Justice Rehnquist's plurality decision. That is absolutely correct, your honor. Counsel, I'd like to discuss your free exercise argument briefly, if we could. I do agree that subtle pressure can sometimes be coercive, and I think that gets to your argument. And so we need to find where that line is. I'm wondering where your argument leads, though, because heretofore the federal courts have not found that the teaching of evolution in the public schools was a violation of the Constitution. But if we were to adopt your position, it seems to me that it would be a violation of the parents' free exercise rights because it violates the tenets of Islam, Judaism, and Your honor, I don't think that's the logical consequence of our argument. If it were, and I don't think it is, it would actually be the logical consequence of Mahmoud itself. So posting a poster on the wall is coercive, but teaching a theory that's contrary to Islam, Judaism, and Christianity as to the origin of man is not coercive? I think teaching evolution in a science class is not unconstitutional, and following Mahmoud would not make it so. So how would posting a poster on the wall be a violation then? Because it is a more significant imposition on the rights of parents to instill religious beliefs in their children. So their children can be taught that they descended from non-human life forms, but they can't have the Ten Commandments on the wall? Yes, Your Honor, and I suppose you could get into certain opt-out issues on the evolution because I think the primary one of the differences between this and Mahmoud is the ability to opt out. The state would have it that because there is no opt-out right from a statute that is as de maximis as this, that therefore you cannot object. That is not the law. There is no de maximis exception to the free exercise clause. But, Your Honor, if I could compare Mahmoud's facts to these facts, I think there are two differences. One is Mahmoud, there are probably others, but two differences. Mahmoud was not about religious exercise or religious teaching. It was about normative teaching that parents testified and the testimony was accepted. Unlike here, without deposition, on plenary injunction, without any discovery, it was simply accepted as an interference with their free exercise rights and their family and for their children. And the other difference is it's on the wall. And there we get back to the question Your Honor asked me about how important is it? What is it? And is it instruction? I submit to you, it absolutely is instruction. The legislators tell us that they envision it being instruction. Respectfully, it's common sense given how they are and where they are. We have testimony from two of the plaintiffs who actually had the posters up. These are the later added plaintiffs, later added districts, as to the 13 days or so their children were exposed to it and the effect on it. So they're reading it. They're asking it. They're coming home and saying, Mom, what does it mean to covet? What is a Sabbath? What is one God? Those were the questions asked only in like a 10-day period. And that is just as much, if not more, of an imposition on the plaintiffs' free exercise rights, the parent plaintiffs and the children as well, as Mahmoud, which was not on its face religious instruction, notwithstanding the conclusion that it was inconsistent with certain deeply held and genuine beliefs of the parent plaintiffs there. Can I ask you about neutrality? I asked opposing counsel. I think Smith is extraordinarily difficult to apply. The Supreme Court disagrees. But how does neutrality apply here? Well, first, Your Honor, I think Mahmoud held that Smith didn't need to apply because of the clear burden that it placed. I think the exact words from Mahmoud were, where a statute requires them, being the parents, to submit their children to instruction that poses a very real threat of undermining religious beliefs and practices. Just to short-circuit it, suppose we disagree for the reasons stated by Judge Graz. How do you apply neutrality here? You get to incidental burden. Well, there's nothing neutral about it, Your Honor. It is, again, we submit King James Version. Skip that. I don't need that to win. It is definitely a Judeo-Christian version and inconsistent with, just take, I am the Lord thy God. Thou shalt have no other gods before me. That is completely inconsistent to an atheist family. It is inconsistent to any tradition that has multiple gods. There's nothing neutral about it. We haven't gotten to denominational preference, which I think applies under the Establishment Clause, but there's almost a parallel here under the free exercise. Your Honor, I see my time has expired. I'm happy to answer more questions, but I see it's expired. You can complete your answer if you like. What I would complete it with is, once we get under Mahmoud to strict scrutiny, I don't think there's any actual arguments here that this would satisfy it. It is, we do not know what the compelling state interest is, and even if there was one, there's no effort here on narrow tailoring. If you want the students of the state of Arkansas to learn about the Ten Commandments, you teach it in world religions or history or other classes where it is taught as something that's there, but not as a dictate in every classroom that you must believe and you must follow. Thank you, Your Honors. Ms. Patterson, I think I asked a question that required you to use up some of the time that you had allotted for rebuttal, so let's set the clock at four minutes. Thank you, Your Honor. I'll start kind of where he left off, with Mahmoud and Mirabelli. Both of these cases involved active instruction contrary to parents' beliefs, which is why the court found that there was that substantial interference with the parents' ability to direct the religious upbringing of their children. That doesn't exist here. As plaintiffs admitted at RDoC 179 at 6, the act does not require the Ten Commandments to be incorporated into the curriculum and have that active instruction, and there's no requirement for teachers or other school officials or students to interact with, bring attention to, or even acknowledge the posters in any way. And the later added plaintiffs in those classrooms where posters had been put up had no evidence that any teachers instructed their children about Act 573 displays. So there isn't that sort of active instruction that the beliefs are wrong or anything of that nature. All you have is a historical representation of the Ten Commandments with enormous secular historical significance posted on the walls. And it's also telling that what they're seeking here is different than what the parents sought there. The Mahmoud parents weren't seeking to micromanage the curriculum and agreed that the books could remain on the shelf. They simply wanted their students to be let out, be able to opt out of that active instruction. As Judge Gross indicated, if they're right on the free exercise claim, then that means that parents would be able to dictate what's on classroom walls. They could demand evolution posters be removed from walls, flags that interfered with some religious belief, everything of that nature. Is that really true, though? Couldn't they set up an opt-out system like in Mahmoud? It'd be clunky. But you could say, well, if you don't want your kid in a room with the Ten Commandments, we'll put you in another room and you'll get so-and-so teacher. I mean, I'm just throwing out that it's not completely inconsistent with Mahmoud. That's not what courts have required in other situations such as the Pledge of Allegiance. Students still sit in that classroom as the pledge is being recited, and the courts have found uniformly that that does not violate the free exercise right. And so the same would be true here. I also want to briefly discuss Van Orden since they mentioned that and its description. Van Orden, even the plurality, as your Honor noted, it is a plurality, so it cannot overrule or change what Stone said, but it never says that Stone isn't a lemon test. It never even uses the word coercion or says it's a coercion test. At page 690, it describes Kentucky's law in Stone and that Stone recognized it had a, quote, plainly religious purpose. In the footnote, it also noted that it was about that law lacking a plainly religious preeminent purpose. And in regards to Santa Fe and Lee, notably, they didn't rely exclusively on lemon, as your Honor's questions somewhat hinted at. For example, at page 312 of Santa Fe, the Supreme Court applied the coercion test from Lee and found that the challenge practice was unconstitutional and that that religious activity, there was a coercion to participate in that religious activity. And so that is clearly different from Stone that relied and applied exclusively on lemon. So as Justice Scalia noted in his Van Orden concurrence, there's nothing unconstitutional and it's about a state in a non-proselytizing manner better than the Ten Commandments. And there's no hallmark of religious establishment here and no free exercise problem as the Fifth Amendment or a similar law in Nathan. I see my time has expired, so I ask that the Court reverse. Thank you. Thank you, Counsel. We appreciate your arguments today. The case is submitted and we will render a decision as soon as possible. You may stand aside."
}