This case involves the alleged unconstitutionality of House Bill No. 71, Act 676 (“H.B. 71” or the “Act”).
This law provides in relevant part: No later than January 1, 2025, each public school governing authority shall display the Ten Commandments in each classroom in each school under its jurisdiction. The nature of the display shall be determined by each governing authority with a minimum requirement that the Ten Commandments shall be displayed on a poster or framed document that is at least eleven inches by fourteen inches. The text of the Ten Commandments shall be the central focus of the poster or framed document and shall be printed in a large, easily readable font.
Defendants Cade Brumley, Conrad Appel, Judy Armstrong, Kevin Berken, Preston Castille, Simone Champagne, Sharon Latten-Clark, Lance Harris, Paul Hollis, Sandy Holloway, Stacey Melerine, Ronnie Morris, East Baton Rouge School Board, and St. Tammany Parish School Board (collectively, “AG Defendants”) challenged Plaintiffs’ introduction of Steven K. Green as an expert witness under the Daubert standard.
History Expert Witness
Steven K. Green earned a B.A. degree in History and Political Science, Magna Cum Laude, from Texas Christian University in 1978 where his minor was Religious Studies. He graduated from the University of Texas School of Law in 1981, earning a J.D. degree. In 1987, he received a Master’s degree in American Religious History from the University of North Carolina, Chapel Hill and a Ph.D. in Constitutional History from the same university in 1997. He is currently the Fred H. Paulus Professor of Law and Affiliated Professor of History and Religious Studies at Willamette University in Salem, Oregon, where he was also the Director of the Willamette Center for Religion, Law and Democracy from 2007 to 2020. He has authored “seven books and more than fifty scholarly articles and book chapters” in the area of “the intersection of law, religion, and history.”
Discussion by the Court
In his report and testimony, Green offered opinions regarding “the history of the U.S. Constitution and First Amendment with respect to religious matters; the history of the Ten Commandments with respect to U.S. law and government; the history of displays of the Ten Commandments in public schools; and the denominational nature of the specific version of the Ten Commandments adopted in House Bill No. 71, Act No. 676 . . . .” In his report and testimony, Green offered “four key conclusions”: –
- The Religion Clauses of the First Amendment were rooted in the Founders’ profound concerns for protecting the conscience of individuals and religious communities; avoiding official denominational preferences, including official promotion of religious doctrine; and preventing the religious divisiveness that flows from government favoritism of some religions or non-religion.
- The historical record demonstrates that the Ten Commandments are not a foundation of the American Government or legal system.
- There is no evidence of a longstanding historical acceptance and practice of widespread, permanent displays of the Ten Commandments in public school classrooms.
- The version of the Ten Commandments adopted under H.B. 71 is Protestant and thus religiously exclusive.
Summary of AG Defendants’ Arguments
AG Defendants contended that Green has failed “to identify any external standard validating his methodology.” Moreover, his opinions “attempt to overrule the Supreme Court on historical questions it has already definitively asked and answered.” AG Defendants added that Green’s proffered opinions are not truly independent because of his background as an advocate.
Most importantly, Green’s opinions are not relevant because (a) “the standard [governing the Establishment Clause] is not concerned with whether a specific challenged practice occurred in the past, but instead with whether the current challenged practice reflects any of the already-identified hallmarks of a religious establishment[,]” and (b) his opinions do “not tend to establish any fact at issue [since] the historical facts are not in dispute, just how to characterize those facts.”
Analysis
A. Has Green Used an Accepted Methodology in Reaching His Opinions?
AG Defendants argued that Green has failed to use, or at least identify, an “external standard validating his methodology.” But in his report, Green explains the methodology he used for his historical analysis which he described as “standard and well-accepted methodologies used by historians” including “review[ing] both primary and secondary sources[,]” determining the reliability of the sources, comparing their consistency to other evidence, considering the circumstances of their production (including the place, time and source of production), “consider[ing] how the plain language of the source would have been interpreted at the time of its writing, and avoid[ing] the application of modern interpretations to documents that were centuries old.”
At the Daubert hearing, during both direct and cross-examination, Green went into greater detail regarding the standard methodology utilized by historians in reaching conclusions and how he utilized this methodology in reaching his opinions in this case. To the extent that he relied on his prior work in this area, he explained that he followed that same methodology there. In both direct and cross-examination, Green pointed to the fact that many, if not most, of the books and articles relied upon by him had been peer-reviewed and explained the peer-review process.
Counsel for the AG Defendants acknowledged that Fifth Circuit precedent does not require the same criteria for measuring reliability of expert testimony in the “soft sciences” as in the “hard sciences.” Similarly, and pertinent to this case, the Fifth Circuit has concluded that “soft sciences” involve “necessarily diminished methodological precision” when compared to other scientific disciplines like mathematics and engineering.
The Court found that Green has shown a well-articulated, supported, and adequate methodology used in reaching his opinions and therefore denies this basis for AG Defendants’ Daubert challenge.
B. Do Green’s opinions “attempt to overrule the Supreme Court on historical questions it has already definitively asked and answered”?
AG Defendants argued that Green’s opinions “attempt to overrule the Supreme Court on historical questions it has already definitively asked and answered.” Specifically, AG Defendants pointed to Green’s statement that “the Ten Commandments are not a foundation of the American government or legal system.” They argued that this is at odds with Supreme Court and Fifth Circuit jurisprudence.
AG Defendants contended that Green’s opinions contradict the Supreme Court and is thus ipso facto unreliable.
To state the obvious: contrary to AG Defendants’ suggestion to the contrary, an expert cannot “overrule” a Supreme Court opinion. Indeed, experts cannot render legal conclusions at all. But Green was not tendered as a legal expert and, indeed, the Court sustained objections to questions posed to Green by counsel for AG Defendants during cross-examination that attempted to elicit legal opinions from him.
The Court held that AG Defendants’ objections go to the merits of his testimony and are therefore a matter for cross-examination at the hearing rather than exclusion via a Daubert motion.
C. Does “Green’s background as an advocate . . . mean[ ] his proffered opinions are not truly independent and are thus unreliable”?
AG Defendants argued that “Green’s background as an advocate means his proffered opinions are not truly independent and are thus unreliable.” They maintained that his work for Americans United for Separation of Church and State (“AUSCS”) for over a decade including directing the organization’s litigation practice and representing AUSCS in cases similar to the present one “indicated a potential for bias.”
Both sides agreed that the fact that an expert is an employee or former employee of a party is not grounds for automatic exclusion and that employees and former employees are sometimes admitted as experts.
The Court agreed with Plaintiffs that AG Defendants have failed to show bias merely because of Green’s employment with AUSCS some twenty years ago, and this is especially true in light of Green’s extensive scholarship in the area at issue. Despite the opportunity to cross-examine Green on this issue, AG Defendants have offered no additional evidence of supposed bias.
D. Are Green’s Opinions Relevant to the Issues to be Decided?
The Court rejected AG Defendants’ arguments regarding the alleged irrelevance of Green’s opinions.
E. Is There a Lessened Need for Daubert Scrutiny?
If this Daubert motion were in advance of a jury trial, the Court would, for the reasons stated above, find Green’s methodology and the reliability of his opinions such that the Court would deny the Motion. But the testimony was given at a preliminary injunction hearing tried to the bench where “[t]here is less need for the gatekeeper to keep the gate when the gatekeeper is keeping the gate only for himself.” This is an additional reason that denial of the Motion is warranted.
Held
The Court denied the Defendants’ motion to exclude the testimony of Steven Green.
The Court accepted Green as an expert in the fields tendered: the history of the United States Constitution and the First Amendment with respect to religious matters, the history of religion in U.S. public schools, and denominational variations in the text of the Ten Commandments.
Key Takeaways:
- It is not the role of the court to decide whether an expert’s opinions are correct or, in the case of competing and conflicting expert opinions, which one is right or even which one has greater support. It will often occur that experts come to different conclusions based on contested sets of facts. A Daubert challenge does not test the correctness of the opinion but only the methodology utilized by the expert.
- The fact that an expert is an employee or former employee of a party is not grounds for automatic exclusion and employees as well as former employees are sometimes admitted as experts.
- Both in his report and in his testimony, Green explained in exquisite detail how his “four key conclusions” were supported by historical sources and the other data upon which he relied.
Case Details:
| Case Caption: | Roake Et Al V. Brumley Et Al |
| Docket Number: | 3:24cv517 |
| Court: | United States District Court, Louisiana Middle |
| Order Date: | November 12, 2024 |
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