Texas Ten Commandments case headed to the Supreme Court

SCOTUSBlog reported yesterday, and has more thorough legal analysis than what the Trib does.

Here's the nutgrafs:

The justices have considered a similar law before. In 1980, in Stone v. Graham, the court ruled that a Kentucky law requiring public schools to display a framed copy of the Ten Commandments in classrooms violated the Constitution. In an unsigned opinion, the court wrote that “[i]f 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,” which prohibits the government from favoring one religion over another. 

In the 46 years since the Stone decision was handed down, both the court’s make-up and its religious-freedom jurisprudence have changed significantly. In particular, the court’s ruling in Stone rested on its conclusion that the Kentucky law failed the “Lemon test” – a three-part test, outlined in the 1971 case Lemon v. Kurtzman, to determine whether a law violates the Constitution’s establishment clause. Under that test, a statute had to be found to have a secular purpose, the statute could not promote or restrict religious beliefs or practices, and the statute could not foster excessive church-state entanglement. In 2022’s Kennedy v. Bremerton School District, in which the court ruled in favor of a high school football coach who lost his job after leading post-game prayers on the field, Justice Neil Gorsuch’s opinion for the six-justice majority indicated that Lemon had been “long ago abandoned.” Instead, Gorsuch wrote, courts should look at history and the understanding of the drafters of the Constitution to determine whether a law or practice violates the establishment clause.

Well put. 

Part of the problem is that Gorsuch and others of the "six" badly framed Bremerton, and I suspect deliberately. That said, beyond that, the Court was presented a case that was itself deliberately misframed by Kennedy and his backers, and it became a tool for wingnuts. See Wiki's summary.

The plaintiffs are saying that Stone has not been rejected, whatever the standing of Lemon is. 

That said, per SCOTUSBlog, the plantiffs have another angle:

The majority also rejected the families’ effort to rely on Mahmoud v. Taylor, a 2025 decision in which the Supreme Court agreed that a Maryland school board violated the rights of parents to freely exercise their religion when it refused to allow them to opt their children out of instruction that included LGBTQ+ themes. S.B. 10, the majority stressed, “authorizes no religious instruction and gives teachers no license to contradict children’s religious beliefs (or their parents’).”

It's been speculated by many court-watchers that the Supremes would vote to overturn the Texas law, and a similar Louisiana one, on this basis or similar. I can see a 5-4 or 6-3 coalition possibly breaking that way, in what will be a three- or four-way fractured opinion. 

Per the 9-8 Fifth Circuit ruling, it's clear that majority there rejects entirely the Jeffersonian "wall of separation" not just broadly construed but narrowly.

If five or six justices agree, we're really in trouble.