A federal judge blocked a Louisiana law that would have required public schools to display the Ten Commandments. The ruling was unsurprising, because the state law goes against Supreme Court precedent, which binds lower court judges.
But with Louisiana’s attorney general vowing an appeal, the question arises: Will the Supreme Court uphold the 1980 precedent if the case makes it to the justices?
We won’t know unless and until the case gets there, but it won’t surprise anyone to hear that this isn’t the same court from decades ago. Indeed, Election Day bolstered its Republican-appointed supermajority for years to come.
So what’s this 1980 ruling, and how does it apply to the Louisiana law?
The ruling came in a Kentucky case called Stone v. Graham. The court said there: “If the posted copies of the Ten Commandments are to have any effect at all, it will be to induce the schoolchildren to read, meditate upon, perhaps to venerate and obey, the Commandments. However desirable this might be as a matter of private devotion, it is not a permissible state objective under the Establishment Clause.”
The First Amendment says that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” but the Supreme Court has tended more toward protecting the free exercise part than the establishment part in recent years.
Nonetheless, the Stone precedent is still on the books. In his opinion Tuesday in the Louisiana case, U.S. District Judge John W. deGravelles observed that “Stone remains good law and is directly on point.” The Obama appointee wrote that he “remains bound to follow Stone until the Supreme Court overrules it.”
Again, that raises the question of whether the court will overrule it. On that note, I should point out that, even in 1980, the Stone decision wasn’t unanimous, and it was decided in summary fashion. One of the dissenting justices was William Rehnquist, who wrote to express his disagreement with “what I cannot refrain from describing as a cavalier summary reversal, without benefit of oral argument or briefs on the merits, of the highest court of Kentucky.” Rehnquist wrote that the establishment clause “does not require that the public sector be insulated from all things which may have a religious significance or origin.” As it happens, Chief Justice John Roberts clerked for Rehnquist in 1980. Roberts and his GOP-appointed colleagues likely agree more with Rehnquist than the Stone majority. So an appeal in the Louisiana case could give today’s court the chance to reverse another precedent and further erode the establishment clause. The federal appeals court that covers Louisiana is the 5th Circuit, which has judges who are even further to the right of the Supreme Court. So we’ll have to see what the 5th Circuit does, but it could put the challengers to the Louisiana law in a position of having to ask the Roberts Court for relief. 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 Donald Trump’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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