Libby Hilsenrath, on behalf of her minor child, C.H. v. School District of the Chathams

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 23-3030
____________
LIBBY HILSENRATH, on behalf of her minor child, C.H.,
Appellant
v.
SCHOOL DISTRICT OF THE CHATHAMS; BOARD OF
EDUCATION OF THE SCHOOL DISTRICT OF THE
CHATHAMS; MICHAEL LASUSA, In his official capacity
as the Superintendent of the School District of Chathams;
KAREN CHASE, In her official capacity as the Assistant
Superintendent of Curriculum and Instruction at the School
District of the Chathams; JILL GIHORSKI, In her official
capacity as the Principal of Chatham Middle School;
STEVEN MAHER, In his official capacity as the Supervisor
of Social Studies for the School District of the Chathams;
MEGAN KEOWN, In her official capacity as a Social
Studies teacher for Chatham Middle School; CHRISTINE
JAKOWSKI, In her official capacity as a Social Studies
teacher for Chatham Middle School
____________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 2:18-cv-00966)

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District Judge: Honorable Kevin McNulty
____________
Argued on October 29, 2024
Before: HARDIMAN, PHIPPS, and FREEMAN, Circuit
Judges.
(Filed: May 5, 2025)
Michael P. Hrycak
316 Lenox Avenue
Westfield, NJ 07090
Richard Thompson [Argued]
Thomas More Law Center
24 Frank Lloyd Wright Drive
P.O. Box 393
Ann Arbor, MI 48106
Counsel for Appellant
Ruby Kumar-Thompson [Argued]
Cleary Giacobbe Alfieri & Jacobs
169 Ramapo Valley Road
Upper Level 105
Oakland, NJ 07436
Counsel for Appellees
Noel J. Francisco
Christopher Pagliarella [Argued]
Jones Day
51 Louisiana Avenue NW
Washington, DC 20001

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Eric C. Rassbach
The Becket Fund for Religious Liberty
1919 Pennsylvania Avenue NW
Suite 400
Washington, DC 20006
Counsel for Amicus Curiae Jewish Coalition for
Religious Liberty in Support of Appellees
Alexander J. Luchenitser
Sarah Taitz
Americans United for Separation of Church & State
1310 L Street NW
Suite 200
Washington, DC 20005
Counsel for Amicus Curiae Americans United
for Separation of Church and State in Support of
Neither Party
___________
OPINION OF THE COURT
____________
HARDIMAN, Circuit Judge.
This appeal concerns the constitutionality of a middle
school social studies curriculum. Libby Hilsenrath sued the
Board of Education of the School District of the Chathams over
instructional videos about Islam in her son’s seventh-grade
World Cultures and Geography class. She claimed the Board
violated the Establishment Clause of the First Amendment by
assigning the videos. Applying recent pathmarking decisions
of the Supreme Court, the District Court disagreed and granted

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summary judgment to the Board. Hilsenrath filed this appeal.
Because the school’s curriculum does not resemble a
traditional hallmark of religious establishment, we will affirm.
I
A
During the 2016–2017 school year, C.H. was a seventh-
grade student at Chatham Middle School. He was enrolled in a
mandatory World Cultures and Geography class taught in part
by long-term substitute Christine Jakowski. The class
canvassed world regions to help students “gain a greater sense
of the world around them” and “become active and informed
global citizens.”1 Many resources for the class, such as
“calendars, handouts, assignment and project directions, and
grading guidelines,” were located on Google Classroom.2
The class was organized into seven units, six of which
focused on a different region of the world. Within each of these
units, students explored the history and culture of the
highlighted region, which sometimes included studying its
predominant religion. During the Latin America unit, students
learned about Christianity. And in the East Asia unit, students
viewed PowerPoint slides and videos about Buddhism and
Hinduism. The curriculum implemented state standards,
including that students will be able to “[c]ompare and contrast
the tenets of various world religions.”3
Students encountered Islam during two class periods
1 App. 439.
2 App. 441.
3 App. 127.

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within the “Middle East and North Africa” (MENA) unit, both
taught by Ms. Jakowski. The first lesson was presented through
a set of PowerPoint slides entitled “Teaching Critical
Thinking[:] Making Generalizations with Content.”4 That
presentation instructed students that “[a] generalization is a
broad, universal statement of understanding based on specific
facts and data” and cautioned that “[s]ome are valid” and
“others are invalid or faulty.”5 To test students’ understanding,
the final slide directed them to identify generalizations in a
hyperlinked YouTube video and to label them either “valid or
faulty.”6
That five-minute video, entitled “Intro to Islam,”
contains images and written text. Instead of a voiceover, the
video features background music and Arabic chants.7 The first
half of the video alternates between quotations from the Quran
and a series of questions and answers about Islam, including:
• “What is Islam?” “Faith of divine guidance for
Humanity, based on peace, spirituality and the oneness
of God.”8
• “Who is Allah?” “Allah is the one God who created the
heavens and the earth, who has no equal and is all
4 App. 407.
5 App. 409, 413.
6 App. 416.
7 Since filing this lawsuit, Hilsenrath has produced what she
believes to be the English translation of the Arabic chants sung
in the Intro to Islam video. But neither she nor C.H. speaks
Arabic, so they did not understand the meaning of the chants
when they first watched the video.
8 Intro to Islam at 0:17.

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powerful.”9
• “Who is Muhammad (S)?” “Muhammad (Peace be
upon him) is the last & final Messenger of God. God
gave him the Noble Quran.”10
• “What is the Noble Quran?” “Divine revelation sent to
Muhammad (S) last Prophet of Allah. A Perfect guide
for Humanity.”11
• “What does history say about Islam?” “Muslims created
a tradition of unsurpassable splendor, scientific thought
and timeless art.”12
After about two minutes, the video turns to a discussion of
“Islamic Art and Architecture,” as well as other Muslim
contributions to society.13 Finally, text on the last substantive
slide reads “May God help us all find the true faith, Islam . . .
Ameen.”14
The second class in the MENA unit introduced students
to “the 5 Pillars of Faith” and the “impact/significance of them
in the Muslim culture.”15 This lesson included a different
PowerPoint presentation, entitled “Introduction to Islam.”16
The slides gave students a broad overview of Islam, including:
9 Id. at 0:29.
10 Id. at 1:01.
11 Id. at 1:38.
12 Id. at 2:10.
13 Id. at 2:13.
14 Id. at 4:40.
15 App. 461.
16 App. 224, 386.

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the symbol of Islam; key figures in Islam; the Quran;
demographic statistics about Muslims; and a summary of the
Five Pillars of Islam. The slides also included a hyperlink to a
YouTube video entitled “The 5 Pillars of Islam.”17
“The 5 Pillars of Islam” is an animated cartoon. The
video features a conversation between two children, a non-
Muslim named Alex and a Muslim named Yusuf. Curious,
Alex asks Yusuf a series of questions about Islam. Yusuf
responds by explaining that “Muslims believe that there is only
one God,” whose name is “Allah” and who “is the creator of
everything.”18 After describing the Five Pillars, Yusuf invites
Alex to join him in prayer. The video closes by providing an
email address and a website through which viewers can
“organise a mosque tour, or order an information pack.”19
At the end of the second lesson, students completed a
“Scavenger Notes Activity,” a worksheet instructing them to
“[t]ake notes using the slides” and to “[f]ill in the blanks AND
correct the false information” scattered throughout.20 One
section of the worksheet read as follows:
Pillar 1: Belief/Faith (Shahadah)
The basic statement of the Islamic faith:
“There is no god but _________ and
_________ is his messenger.”
This statement is the centrifugal force to their
17 App. 395.
18 5 Pillars of Islam at 1:20–1:29.
19 Id. at 5:18.
20 App. 418–22, 461.

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religion.21
Although Ms. Jakowski presented both sets of
PowerPoint slides to the students, she did not show either video
in class or explicitly instruct the students to view them. C.H.
nonetheless watched the “Intro to Islam” and “5 Pillars” videos
at home with his mother, Libby Hilsenrath. Concerned about
the MENA curriculum, Hilsenrath emailed administrators and
aired her complaints at a school board meeting in February
2017. At a later meeting, the Board defended its curriculum as
a proper application of the school’s policy on religion in the
classroom. But citing “disruption,” the school ultimately
removed the video links from the MENA unit PowerPoint
slides.22
B
Hilsenrath sued the District, the Board, and several
teachers and administrators on behalf of her minor son, C.H.,
claiming that the school’s MENA curriculum violated the
Establishment Clause of the First Amendment. She sought an
injunction, a declaratory judgment, nominal damages, and
attorney’s fees.
After denying the Defendants’ motion to dismiss, the
District Court considered the parties’ cross-motions for
summary judgment. The Court first determined that Hilsenrath
lacked standing to seek injunctive and declaratory relief
because her son was no longer enrolled in the World Cultures
and Geography class. It then dismissed the claims against all
defendants except the Board, finding that the Board alone is
21 App. 420.
22 App. 358.

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“the legal entity responsible for the decisions that are
challenged here.”23 On the merits, the District Court applied
Lemon v. Kurtzman,24 found no Establishment Clause
violation, and granted the Board’s motion for summary
judgment. Hilsenrath timely appealed. After hearing oral
argument, this Court vacated the District Court’s judgment and
remanded in view of the Supreme Court’s decision in Kennedy
v. Bremerton School District.25
On remand, the District Court again considered the
parties’ cross-motions for summary judgment. The Court first
noted that its holdings concerning standing and proper parties
were “not implicated by Kennedy and therefore remain[ed]
intact,” leaving it to decide only “Ms. Hilsenrath’s
Establishment Clause claim for nominal damages.”26 Turning
to the merits, the District Court observed that Kennedy “clearly
reject[ed] the Lemon test” in favor of a “historical analysis.”27
Under that new standard, the Court concluded that none of the
materials in the MENA unit resembled the “hallmarks
associated with establishment of religion.”28 In particular, the
Court found “no evidence of significant coercion,” which the
23 Hilsenrath v. Sch. Dist. of Chathams, 500 F. Supp. 3d 272,
287–89 (D.N.J. 2020), vacated and remanded, 2022 WL
2913754 (3d Cir. July 20, 2022).
24 403 U.S. 602 (1971).
25 597 U.S. 507 (2022).
26 Hilsenrath v. Sch. Dist. of the Chathams, 698 F. Supp. 3d
752, 760 & n.11 (D.N.J. 2023). Because Hilsenrath waived the
standing and proper parties issues in her brief and at oral
argument, we likewise consider only her nominal damages
claim against the Board.
27 Id. at 761 (cleaned up).
28 Id. at 765 (cleaned up).

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Kennedy Court had called one of the “foremost hallmarks of
religious establishments.”29 So the District Court granted
summary judgment for the Board on Hilsenrath’s nominal
damages claim. Hilsenrath timely appealed.
II
The District Court had jurisdiction under 28 U.S.C.
§§ 1331 and 1343(a)(3). We have jurisdiction under 28 U.S.C.
§ 1291. Summary judgment may be granted only when “the
movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter
of law.”30 “We review de novo the District Court’s resolution
of cross-motions for summary judgment.”31
III
A
The Establishment Clause provides that “Congress shall
make no law respecting an establishment of religion.”32 Since
the ratification of the First Amendment in 1791, Congress has
obeyed that straightforward prohibition. But things started to
get complicated in 1947 when, in Everson v. Board of
Education, the Supreme Court applied the Establishment
Clause to the States through the Fourteenth Amendment.33
Once the Court applied the Clause—which seemed to honor a
29 Id. at 763 (cleaned up).
30 Fed. R. Civ. P. 56(a).
31 Spivack v. City of Phila., 109 F.4th 158, 165 (3d Cir. 2024)
(cleaned up).
32 U.S. Const. amend. I.
33 330 U.S. 1, 15 (1947).

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rudimentary federalism principle34—to interactions between
local governments and religion, the federal courts were beset
with complaints of unconstitutional conduct.35
Those cases led to the Supreme Court’s decision in
Lemon v. Kurtzman,36 which tried “to distill from the Court’s
existing case law a test that would bring order and
predictability to Establishment Clause decisionmaking.”37
Lemon created a three-part test to assess the constitutionality
of a practice by asking whether: (1) “the government practice
had a secular purpose”; (2) “its principal or primary effect
advanced or inhibited religion”; and (3) “it created an
excessive entanglement of the government with religion.”38
The Lemon test had a short shelf life. In a concurring
opinion in Lynch v. Donnelly, Justice O’Connor opined that the
constitutionality of a religious practice depended on whether a
reasonable observer would conclude that the government was
34 See, e.g., Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S.
1, 49–51 (2004) (Thomas, J., concurring in the judgment)
(citing Akhil Reed Amar, The Bill of Rights 36–39 (1998)).
35 See, e.g., Zorach v. Clauson, 343 U.S. 306 (1952) (released
time religious instruction); Engel v. Vitale, 370 U.S. 421
(1962) (school prayer); Bd. of Ed. v. Allen, 392 U.S. 236 (1968)
(publicly funded textbooks in parochial schools); Walz v. Tax
Comm’n, 397 U.S. 664 (1970) (tax exemptions for religious
organizations).
36 403 U.S. 602 (1971).
37 Am. Legion v. Am. Humanist Ass’n, 588 U.S. 29, 48 (2019)
(plurality opinion).
38 Doe v. Indian River Sch. Dist., 653 F.3d 256, 271 (3d Cir.
2011) (citing Lemon, 403 U.S. at 612–13).

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“endors[ing]” religion.39 This “endorsement test” became the
law in County of Allegheny v. American Civil Liberties
Union.40 But even after the endorsement test gained currency,
the Lemon test sometimes reared its head like “some ghoul in
a late-night horror movie.”41 “[I]nstead of bringing clarity to”
the Supreme Court’s Establishment Clause jurisprudence,
“Lemon produced only chaos.”42 Over time, Lemon has been
criticized,43 amended,44 and altogether ignored.45
Out of this chaos came Kennedy, where the Supreme
Court clarified that it “long ago abandoned Lemon and its
endorsement test offshoot.”46 Building on decisions such as
Town of Greece v. Galloway47 and American Legion v.
American Humanist Ass’n,48 the Court “instructed that the
Establishment Clause must be interpreted by reference to
historical practices and understandings.”49
This kind of historical inquiry “requires serious
39 465 U.S. 668, 687–89 (1984) (O’Connor, J., concurring).
40 492 U.S. 573, 592–94 (1989).
41 Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508
U.S. 384, 398 (1993) (Scalia, J., concurring in the judgment).
42 Shurtleff v. City of Bos., 596 U.S. 243, 277 (2022) (Gorsuch,
J., concurring in the judgment).
43 See, e.g., Lamb’s Chapel, 508 U.S. at 398 (Scalia, J.,
concurring in the judgment).
44 See, e.g., Cnty. of Allegheny, 492 U.S. at 593.
45 See, e.g., Marsh v. Chambers, 463 U.S. 783, 793–94 (1983).
46 597 U.S. at 534.
47 572 U.S. 565 (2014).
48 588 U.S. 29 (2019).
49 Kennedy, 597 U.S. at 535 (cleaned up).

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work.”50 And that work is especially challenging here because
“free public education was virtually nonexistent at the time the
Constitution was adopted.”51 But “[h]istorical tradition can be
established by analogical reasoning,”52 and history teaches that
established churches often bore certain “telling traits”:
First, the government exerted control over the
doctrine and personnel of the established church.
Second, the government mandated attendance in
the established church and punished people for
failing to participate. Third, the government
punished dissenting churches and individuals for
their religious exercise. Fourth, the government
restricted political participation by dissenters.
Fifth, the government provided financial support
for the established church, often in a way that
preferred the established denomination over
other churches. And sixth, the government used
the established church to carry out certain civil
functions, often by giving the established church
a monopoly over a specific function.53
So to prevail on her Establishment Clause claim, Hilsenrath
50 Shurtleff, 596 U.S. at 285 (Gorsuch, J., concurring in the
judgment).
51 Edwards v. Aguillard, 482 U.S. 578, 583 n.4 (1987).
52 Range v. Att’y Gen., 124 F.4th 218, 228 (3d Cir. 2024) (en
banc).
53 Shurtleff, 596 U.S. at 286 (Gorsuch, J., concurring in the
judgment) (citing Michael W. McConnell, Establishment and
Disestablishment at the Founding, Part I: Establishment of
Religion, 44 Wm. & Mary L. Rev. 2105, 2110–12, 2131–81
(2003)).

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must show that the Board’s MENA curriculum resembles one
of these hallmarks of religious establishment.54
B
Hilsenrath proffers two constitutional flaws in the
MENA curriculum, likening each to a hallmark of religious
establishment. The first is coercion: she claims that the Board
did something like “mandat[ing] attendance in the established
church” by requiring C.H. to view “religious indoctrination
videos.”55 The second is non-neutrality: by emphasizing Islam
in its curriculum, she reasons, the Board effectively “provided
financial support for the established church . . . in a way that
preferred the established denomination over other churches.”56
Neither argument is persuasive.
1
Hilsenrath first argues that the Board coerced her son
into religious practice when it subjected him to “direct
54 Hilsenrath and Amicus Americans United insist that
Shurtleff did not enumerate an exhaustive list of practices that
violate the Establishment Clause under a historical approach.
True enough. But we agree with our sister circuit that under
Kennedy, “the plaintiff has the burden of proving a set of facts
that would have historically been understood as an
establishment of religion.” Firewalker-Fields v. Lee, 58 F.4th
104, 122 n.7 (4th Cir. 2023). So even if Shurtleff does not cabin
the Establishment Clause inquiry, it was Hilsenrath’s burden
to expand its reach.
55 Reply Br. 11 (citation omitted).
56 Reply Br. 17 (citation omitted).

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proselytizing.”57 To be sure, coercion was one of the “foremost
hallmarks of religious establishments” at the founding,58 and it
has played a prominent role in many of the Court’s school
prayer cases. For instance, in Lee v. Weisman, the Court
invalidated a public school district’s practice of inviting a
member of the clergy to recite a nonsectarian benediction at its
graduation ceremonies, explaining that the benediction
imposed a “subtle and indirect” coercive effect on the
students.59 And in Santa Fe Independent School District v.
Doe, the Court held that a public high school violated the
Establishment Clause when it permitted a student to recite a
prayer over a public address system before each varsity
football game, again concluding that the prayer coerced
spectators into a religious practice.60 History and precedent
therefore make clear that schools may not “force [students] to
engage in a formal religious exercise.”61
But not all school activities touching on religion amount
to “formal religious exercise.”62 While there may be
circumstances in which public schools violate the
Establishment Clause by subjecting students to proselytizing
materials, the Supreme Court has cautioned against
“[f]ocus[ing] exclusively on the religious component of any
activity.”63 Instead, we must look at the whole record to discern
the “proper context” in which an ostensibly religious activity
57 Hilsenrath Br. 23.
58 Kennedy, 597 U.S. at 537 (citations omitted).
59 505 U.S. 577, 586–87, 593 (1992).
60 530 U.S. 290, 311–12 (2000).
61 Kennedy, 597 U.S. at 537 (cleaned up).
62 Id.
63 Lynch, 465 U.S. at 680.

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took place.64 For example, while a teacher might recite the Ten
Commandments as an act of worship, she could also use them
to introduce students to the fundamental tenets of a major
world religion.65 Context is key.
The record here shows that the Board did not
proselytize. Even assuming students were compelled to watch
the “Intro to Islam” and “5 Pillars” videos—a point which the
parties dispute—they did so “as part of a secular program of
education.”66 The videos were embedded in PowerPoint slides
entitled “Introduction to Islam” and “Making Generalizations
with Content,” which were presented during two sessions of a
year-long class that also covered Christianity, Judaism,
Buddhism, and Hinduism.67 In short, the MENA lesson was
“integrated into the school curriculum” as part of “an
appropriate study of history, civilization,” and “comparative
religion.”68
That context distinguishes this case from the Supreme
Court’s decisions addressing proselytization in public schools.
For instance, the “released time” program invalidated in
Illinois ex rel. McCollum v. Board of Education was
established to instruct public school students in religious
64 Id.
65 See Stone v. Graham, 449 U.S. 39, 42 (1980) (“This is not a
case in which the Ten Commandments are integrated into the
school curriculum, where the Bible may constitutionally be
used in an appropriate study of history, civilization, ethics,
comparative religion, or the like.”).
66 Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 225
(1963).
67 App. 386, 407.
68 Stone, 449 U.S. at 42.

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truth.69 The Bible readings invalidated in Schempp were
designed for “the promotion of moral values . . . .”70 In Lee, the
unconstitutional benediction sought to “give thanks to [the]
Lord[] for keeping us alive, sustaining us and allowing us to
reach this special, happy occasion.”71 And in Santa Fe, the
school offered pre-game prayer “to solemnize the event . . . .”72
Here, by contrast, the Board assigned videos to help
students “understand what a generalization is and the benefits
and consequences of using them” and to “explore the 5 Pillars
of Faith and be able to explain the impact/significance of them
in the Muslim culture.”73 Because the “Intro to Islam” and “5
Pillars” videos were presented in an academic rather than
devotional context, they do “not come close to crossing any
line” separating permissible curricular materials from
impermissible proselytization.74
2
Hilsenrath next argues that, even if the Board did not
coerce students or otherwise proselytize, its curriculum still
matches a hallmark of religious establishment because it favors
Islam over other faiths. But even assuming the Establishment
Clause requires equal treatment in primary and secondary
69 333 U.S. 203, 231 (1948).
70 374 U.S. at 223.
71 505 U.S. at 582 (citation omitted).
72 530 U.S. at 306 (citation omitted).
73 App. 460–61.
74 Kennedy, 597 U.S. at 537.

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school curricula,75 the record does not show favoritism here.
Besides Islam, C.H. and his classmates were introduced to
Christianity, Judaism, Buddhism, and Hinduism. And the
World Cultures and Geography course represented only a
sampling of the expansive world religions curriculum offered
at the School District of the Chathams. As early as
kindergarten, students learn about religious holidays such as
Hanukkah and Christmas. That instruction continues through
high school, when students analyze, among other things, “the
doctrinal disputes . . . that fueled the Protestant
Reformation.”76
Hilsenrath counters that, unlike the instruction on other
religions, the MENA lesson “extol[led] Islam over all other
faiths and encourage[d] conversion to the religion.”77 This
argument once again ignores context. It is true that the creator
of the Intro to Islam video described Allah as “the one God”
75 The parties and amici disagree over whether preferential
treatment itself constitutes an Establishment Clause violation
after Kennedy. Hilsenrath argues that “Kennedy did not alter
the fundamental demand of the Establishment Clause that the
government not prefer one religion over another.” Hilsenrath
Br. 49. Amicus Jewish Coalition counters that a free-floating
neutrality “standard” would cause “phantom constitutional
violations”; it urges tighter alignment with traditional
hallmarks of religious establishment, such as preferential
government funding. Jewish Coalition Br. 21 (cleaned up).
Because world religions were treated equally in C.H.’s World
Cultures and Geography class, we leave for another day
whether curricular non-neutrality violates the Establishment
Clause.
76 App 189.
77 Reply Br. 19.

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and Islam as “the true faith.”78 But the videos were embedded
within PowerPoint slides that refer to Muslims exclusively in
the third person, repeatedly describing what “Muslims
believe.”79 The “Introduction to Islam” worksheet did the
same, detailing Muslim beliefs and practices only from the
perspective of a nonbeliever. Even apart from instructional
materials, the record contains no evidence that Ms. Jakowski is
a Muslim or that she ever tried to convert her students to Islam.
So assuming the Establishment Clause required the Board to
treat religions equally, the record shows that it satisfied that
requirement here.
* * *
The United States of America is not Sparta, where
children were considered wards of the state. Parents are the
first and most important teachers of their children. But once
children enter public school, the curriculum is dictated by local
government policy, typically by an elected school board. That
local arena is the proper place for debate and discussion about
curricular matters. Our role as a federal court is limited to
upholding constitutional rights. So we express no opinion
about the propriety of the curriculum at issue, except to hold
that it does not bear any of the hallmarks of religious
establishment. For that reason, we will affirm the District
Court’s judgment.
78 Intro to Islam at 0:29, 4:40.
79 App. 389–91.

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PHIPPS, Circuit Judge, concurring in the judgment.
This Establishment Clause challenge comes at a time when
the “one-size-fits-all test” from Lemon v. Kurtzman, 403 U.S.
602 (1971), has been emphatically rejected,1 and there is no
longer any lurking constitutional mandate of secularism in
governmental affairs.2 To fill the jurisprudential void
occasioned by Lemon’s demise, the Majority Opinion uses a
‘hallmarks’ test: whether the challenged action bears any
characteristics historically associated with an established
church. That approach has the salutary feature of being
grounded in this nation’s history and tradition, but I posit that
history and tradition are more effective as exegetical tools for
construing the text and structure of the Constitution than as
freestanding constitutional norms. In addition, the use of the
hallmarks test by the Majority Opinion leaves at least two
critical questions unanswered: (i) whether governmental action
that offends only one of the hallmarks is sufficient for an
Establishment Clause violation, or whether the hallmarks
should be considered in the aggregate; and (ii) if one or more
of the hallmarks of an established church are present, whether
that is dispositive of an Establishment Clause violation, or
1 Shurtleff v. City of Boston, 596 U.S. 243, 277 (2022)
(Gorsuch, J., concurring in the judgment); see also Kennedy v.
Bremerton Sch. Dist., 597 U.S. 507, 534–36 (2022).
2 See Shurtleff, 596 U.S. at 261 (Kavanaugh, J., concurring)
(“[A] government violates the Constitution when . . . it
excludes religious persons, organizations, or speech because of
religion from public programs, benefits, facilities, and the
like.”); accord Espinoza v. Mont. Dep’t of Revenue, 591 U.S.
464, 488–89 (2020); Carson ex rel. O.C. v. Makin, 596 U.S.
767, 779, 789 (2022).

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whether the government can justify its offending practice as
comporting with history and tradition.3
In my view, a hallmarks test applied to states through
incorporation4 is not needed to conclude that the materials
about Islam assigned to seventh-grade students at Chatham
3 If the hallmarks test becomes this Court’s “grand unified
theory” of the Establishment Clause, Am. Legion v. Am.
Humanist Ass’n, 588 U.S. 29, 60 (2019) (plurality opinion),
then I submit that the hallmarks should be considered in the
aggregate, see Michael W. McConnell, Establishment and
Disestablishment at the Founding, Part I: Establishment of
Religion, 44 Wm. & Mary L. Rev. 2105, 2111 (2003) (“No
single law created the established church. Rather, it was
constituted by a web of legislation, common law, and
longstanding practice.” (emphasis added)), and that a unit of
government may use history and tradition to justify conduct
that offends one or more hallmarks, see Town of Greece v.
Galloway, 572 U.S. 565, 577 (2014) (“[I]t is not necessary to
define the precise boundary of the Establishment Clause where
history shows that the specific practice is permitted.”).
4 There remain grounds for questioning the incorporation of the
Establishment Clause. See, e.g., Elk Grove Unified Sch. Dist.
v. Newdow, 542 U.S. 1, 49 (2004) (Thomas, J., concurring in
the judgment) (“The text and history of the Establishment
Clause strongly suggest that it is a federalism provision
intended to prevent Congress from interfering with state
establishments. Thus, unlike the Free Exercise Clause, which
does protect an individual right, it makes little sense to
incorporate the Establishment Clause.”); Sch. Dist. of Abington
Twp. v. Schempp, 374 U.S. 203, 310 (1963) (Stewart, J.,
dissenting) (“I accept too the proposition that the Fourteenth
Amendment has somehow absorbed the Establishment Clause,
although it is not without irony that a constitutional provision
evidently designed to leave the States free to go their own way
should now have become a restriction upon their autonomy.”).

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3
Middle School do not establish a religion. Instead, all that is
needed is a recognition that teaching on matters of religion or
even encouraging religious belief or practice in public school
does not constitute a “law respecting an establishment of
religion.” U.S. Const. amend. I. Indeed, one of the other
organic documents of the United States, the Northwest
Ordinance of 1787, encouraged the teaching of religion in
schools: “Religion, morality, and knowledge, being necessary
to good government and the happiness of mankind, schools and
the means of education shall forever be encouraged.” An
Ordinance for the Government of the Territory of the United
States North-west of the River Ohio, Act of July 13, 1787,
art. III.5 Thus, with the lifting of the constitutional mandate of
secularism, teaching about religious matters in a public school
does not violate the Establishment Clause. For that reason, the
instructional materials about Islamic beliefs, practices, and
5 Similarly, in his Commentaries on the Constitution, Justice
Story emphasized that governmental promotion of religion was
not, as a general matter, inconsistent with the Constitution.
See, e.g., 3 Joseph Story, Commentaries on the Constitution of
the United States § 1867 (1833) (“[E]very American colony,
from its foundation down to the revolution, with the exception
of Rhode Island, (if, indeed, that state be an exception,) did
openly, by the whole course of its laws and institutions, support
and sustain, in some form, the Christian religion; and almost
invariably gave a peculiar sanction to some of its fundamental
doctrines. And this has continued to be the case in some of the
states down to the present period, without the slightest
suspicion, that it was against the principles of public law, or
republican liberty.” (footnote omitted)); id. § 1868 (“Probably
at the time of the adoption of the constitution, and of the
amendment to it, now under consideration, the general, if not
the universal, sentiment in America was, that Christianity
ought to receive encouragement from the state, so far as was
not incompatible with the private rights of conscience, and the
freedom of religious worship.”).

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4
modes of worship do not offend that constitutional provision,6
and I respectfully concur in the judgment.
6 Libby Hilsenrath alleges only a violation of the Establishment
Clause; she does not claim, for instance, that she had
insufficient notice of the instructional materials such that the
school’s opt-out provision, see School District of the
Chathams, Policy 5250 Excusal from Class or Program
(Nov. 5, 2007), did not meaningfully protect her parental rights
to educate her son on matters of faith and morals. See
generally N.J. Stat. Ann. § 18A:35-4.7 (“Any child whose
parent or guardian presents to the school principal a signed
statement that any part of the instructions in health, family life
education or sex education is in conflict with his conscience,
or sincerely held moral or religious beliefs shall be excused
from that portion of the course where such instruction is being
given and no penalties as to credit or graduation shall result
therefrom.”); Pierce v. Soc’y of Sisters, 268 U.S. 510, 534–35
(1925) (recognizing “the liberty of parents and guardians to
direct the upbringing and education of children under their
control” as “rights guaranteed by the Constitution”); Meyer v.
Nebraska, 262 U.S. 390, 401 (1923) (describing “the power of
parents to control the education of their own”); Wisconsin v.
Yoder, 406 U.S. 205, 233–34 (1972) (requiring Wisconsin to
“accommodat[e] the religious objections of the Amish” to
compulsory education in light of “the rights of parents to direct
the religious upbringing of their children”); Troxel v.
Granville, 530 U.S. 57, 66 (2000) (plurality opinion)
(recognizing that “the Fourteenth Amendment protects the
fundamental right of parents to make decisions concerning the
care, custody, and control of their children”); C.N. v.
Ridgewood Bd. of Educ., 430 F.3d 159, 185 n.26 (3d Cir. 2005)
(“[W]e do not hold . . . that the right of parents under the
Meyer-Pierce rubric ‘does not extend beyond the threshold of
the school door.’” (quoting Fields v. Palmdale Sch. Dist.,
427 F.3d 1197, 1207 (9th Cir. 2005))); Gruenke v. Seip,

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5
225 F.3d 290, 305 (3d Cir. 2000) (“It is not unforeseeable,
therefore, that a school’s policies might come into conflict with
the fundamental right of parents to raise and nurture their child.
But when such collisions occur, the primacy of the parents’
authority must be recognized and should yield only where the
school’s action is tied to a compelling interest.” (emphasis
added)). But cf. Mahmoud v. McKnight, 102 F.4th 191
(4th Cir. 2024), cert. granted sub nom., Mahmoud v. Taylor,
145 S. Ct. 1123 (2025) (mem.).

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