The Supreme Court closed its most recent term with an important ruling on religion in public schools. In Mahmoud v. Taylor, the Republican-appointed majority sided with parents seeking to opt their elementary school children out of instruction involving LGBTQ-inclusive books, over Democratic-appointed dissent that said the court was casting aside long-standing precedent to usher in a “new reality.”
Now, as the justices prepare to retake the bench in October for their next term, another contentious religion-in-school issue is working its way through the lower courts.
That new issue is actually an old one: the Ten Commandments. It’s not just old in a biblical sense but also in a modern American legal one, because the Supreme Court seemingly settled the matter in 1980. In a case called Stone v. Graham, the court rejected a Kentucky law requiring public schools to display the biblical commands.
Nonetheless, red states have sought to revive the practice.
But they’ve run into a problem: the courts. More specifically, they’ve run into the Constitution, Supreme Court precedent and judges willing to apply those tools to the facts at hand.
The latest example came Monday, when a federal judge issued a preliminary injunction against an Arkansas law on Ten Commandments displays.
It’s not just old in a biblical sense but also in a modern American legal one, because the Supreme Court seemingly settled the matter in 1980.
U.S. District Judge Timothy Brooks didn’t seem to think it was a close call. The Obama appointee wrote that the case “begins and ends with Stone,” referring to the 1980 high court precedent, which he said had “analyzed a law almost identical to the one before this Court and found that it violated the Establishment Clause.”
That clause is the part of the First Amendment that says, “Congress shall make no law respecting an establishment of religion,” and its free exercise clause is the part that goes on to say “or prohibiting the free exercise thereof.” Broadly speaking, free exercise claims have found favor at the Roberts Court — the Maryland books case being a recent example — while establishment clause claims have not.
Notably, the judge cited that Mahmoud case several times in his ruling against Arkansas.
For example, in lambasting what he called the state’s “most intellectually dishonest argument” — that the law requires only “passive” displays and doesn’t require student participation — the judge said the commandments “are not passive because students in public schools are forced to engage with them and cannot look away.” To support that point, he cited Justice Samuel Alito’s opinion in Mahmoud, in which Alito wrote that the government’s operation of public schools “implicates direct, coercive interactions between the State and its young residents.”
Noting that Louisiana and Texas also recently passed commandments display laws, Brooks observed: “Similar laws appear to be in the works in other states, which will lead to more lawsuits — until, it seems, the Supreme Court puts its foot down.”
That raises the questions: Will the Supreme Court put its foot down? And what would doing so look like? Depending on how these brewing cases shape up across the country, one option for the justices could be to rebuke the states by not getting involved at all. That is, if all the lower courts that address the issue unanimously rule against the states, then the justices could effectively uphold those rulings by declining to take up any state petitions asking the justices to overturn them. But if a split emerges in the lower courts, then the high court might be more inclined to step in and issue a new ruling. Of course, if the justices do weigh in, then all bets are off on how the issue would fare. Of course, if the justices do weigh in, then all bets are off on how the issue would fare. As I noted previously, the Stone decision wasn’t unanimous. In particular, it’s worth keeping in mind a dissent in that case from Justice William Rehnquist, for whom Chief Justice John Roberts clerked — in 1980, as it happens — and whose views are more represented on today’s court. “The Establishment Clause does not require that the public sector be insulated from all things which may have a religious significance or origin,” Rehnquist wrote then. Even if today’s court is inclined to broadly affirm the Stone precedent, it might still take up the case to put its own stamp on the matter. On that note, another justification to weigh in anew could be that the Stone case was decided in summary fashion, without full briefing and argument, which drew dissenting complaints at the time — a sort of proto shadow docket critique of that era. At any rate, as Judge Brooks put it, the matter “begins and ends” with Stone for now. But, as ever, whether that’s the end of the story is ultimately up to the justices. Subscribe to the Deadline: Legal Newsletter for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in the Trump administration’s legal cases.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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