In the 1980 case of Stone v. Graham, the U.S. Supreme Court invalidated a Kentucky law that required that the Ten Commandments be displayed on the wall of every public school classroom in the state. The law violated the First Amendment’s Establishment Clause, the Court said. Undaunted, earlier this year, the Louisiana legislature enacted and the state’s governor signed a strikingly similar law for Louisiana classrooms. Unsurprisingly, in light of Stone, last week a federal district judge held that sauce for Kentucky is sauce for Louisiana, and thus struck down the new law.
More surprisingly, perhaps, the opinion invalidating Louisiana’s Ten Commandments law is 177 pages long. Why was it not just a one-sentence opinion citing Stone? And why did a panel of the U.S. Court of Appeals for the Fifth Circuit issue a partial stay of the district court injunction?
The short answer is judicial politics. The district judge who invalidated the Louisiana law and the judge who dissented from the Fifth Circuit’s stay grant are Democratic appointees. The two Fifth Circuit judges who granted the stay are Republican appointees.
Hold on. Aren’t lower court federal judges, regardless of who appointed them, supposed to follow Supreme Court precedent? Indeed, they are. However, as I explain below, Stone is not necessarily the Supreme Court’s last word. The 6-3 supermajority of Republican appointees on the high Court have lately signaled a relaxation of the principle of church-state separation that underwrote Stone.
Thus, the disagreement among the lower court judges is not over whether to follow Supreme Court precedent but over which Supreme Court precedent to follow. The federal district judge needed 177 pages to make his case that Stone provides the operative rule because he needed to address a kitchen sink of arguments from the state and local official defendants proposing a different approach.
Did Stone Sink With Lemon?
Readers interested in a comprehensive summary of the district court opinion can plug it into their favorite Large Language Model. Here I’ll focus on only the core issue: whether Stone remains binding.
The short opinion in Stone began by reciting the three-part test for evaluating Establishment Clause challenges set out in the 1972 case of Lemon v. Kurtzman. According to the Lemon test, to be valid: (1) the challenged law must have a secular purpose; (2) its primary effect may not be to advance or inhibit religion; and (3) it must not foster excessive entanglement between government and religion. The per curiam opinion in Stone said that, given the inherently religious nature of the Ten Commandments, the Kentucky law lacked a secular purpose and thus failed Lemon’s first prong.
The defendants in the Louisiana case argue that their law is different, but the differences are trivial. For example, the Kentucky law mandated a copy of the Ten Commandments that was 16 inches wide by 20 inches high, whereas the Louisiana law mandates only that the document be at least 11 inches wide by 14 inches high.
Actually, to the extent that there are any more substantial differences, the Louisiana law is worse. For one thing, it specifies a particular English version of the Ten Commandments—the one found in the King James Bible—that is favored by various Protestant sects but not Catholics or Jews, to say nothing of people who subscribe to non-Abrahamic religions (like Hinduism and Buddhism) or no faith at all. Moreover, as the district court noted, the Louisiana law, in reciting an ostensible secular purpose of educating students about the role of religion in American history, contains a bogus quotation it attributes to James Madison.
As I noted above, however, the defendants’ efforts to distinguish the Stone case are weak. Their more serious argument is that the Supreme Court tacitly overruled Stone in the 2022 ruling in Kennedy v. Bremerton School Dist. There the Court held that a high school football coach who publicly prayed at the fifty-yard line after games did not violate the Establishment Clause because he did not require any players to join him, even though in fact a great many players did join him on various occasions. En route to reaching that decision, the majority opinion of Justice Neil Gorsuch overruled Lemon.
Indeed, Justice Gorsuch said that prior cases had already overruled Lemon and replaced its three-part test with an inquiry that focuses on “historical practices and understandings” regarding what counts as an unconstitutional establishment of religion. The Kennedy Court allowed that coercing someone to participate in a religious exercise would violate a principle gleaned from the relevant history; however, the majority thought that whatever subtle psychological pressure to pray students might have felt from seeing their coach engage in post-game prayer did not amount to unconstitutional coercion.
According to the defendants in the Louisiana case, Stone relied on Lemon, so when the Kennedy Court overruled Lemon, it therefore overruled Stone along with it. Are they right?
Reading The SCOTUS Tea Leaves
The district judge didn’t think so, for two main reasons. First, he said that Stone did not rely solely on Lemon, which stated a generic test for Establishment Clause cases. Stone was a case about religion in public schools, and there is a separate line of precedent that forbids religious exercises there. In addition to citing Lemon, the Stone Court cited the leading cases invalidating organized prayer in public schools, Engel v. Vitale and School Dist. of Abington Township v. Schempp. Perhaps someday the Supreme Court will overrule those cases and allow organized prayer in public schools, but unless and until it does, they remain good law; therefore, the district judge thought, Stone also remains good law.
Second, even if one thought that Kennedy’s overruling of Lemon portends the overruling of Stone, the Supreme Court has not expressly overruled Stone. And the Supreme Court has stated very clearly that lower courts should follow extant Supreme Court precedents—even those whose doctrinal foundations have been weakened by subsequent developments. The Supreme Court reserves for itself the power to administer the coup de grâce.
That reservation of power generally makes sense as a means of maintaining the uniformity of federal law, but in the current environment, it will likely lead to considerable uncertainty. That will be true with respect to the Establishment Clause but also in other settings in which the Court has overruled (or will overrule) longstanding precedent.
Consider the decision earlier this year in Loper Bright Enterprises v. Raimondo. There, the Court overruled the forty-year-old precedent—Chevron, U.S.A., Inc. v. NRDC—under which courts reviewing actions by administrative agencies defer to the agencies so long as they base their actions on reasonable interpretations of federal statutes. Instead, henceforth the Court will determine the meaning of even very technical statutes de novo, without deference.
In eliminating Chevron deference, the Court in Loper Bright said it did “not call into question prior cases that relied on the Chevron framework. The holdings of those cases that specific agency actions are lawful—including the Clean Air Act holding of Chevron itself—are still subject to statutory stare decisis despite our change in interpretive methodology.” But to say that a precedent is subject to stare decisis is not to say that the Court will not overrule that precedent—as Loper Bright itself and numerous other recent overrulings illustrate.
It is now open to industry and other actors challenging regulations that were previously upheld under the Chevron framework to argue that, under the new framework, those regulations should be invalidated notwithstanding the strength of stare decisis. And because overruling can be accomplished only by the Supreme Court, Loper Bright will likely generate a whole lot of work for the Justices.
Seen in this light, the district judge was right to invalidate Louisiana’s Ten Commandments law on the strength of Stone, but that hardly matters. In this case and in many others in which the Supreme Court has upended decades-old precedents, only the high Court itself can say with any certainty what the law is.