| Four and a half decades ago, in Stone v. Graham, the Supreme Court invalidated a Kentucky law that required the posting of a privately donated copy of the Ten Commandments in every public school classroom in the state. Because the law served no secular purpose, the Court held that it violated the First Amendment’s Establishment Clause. |
| Earlier this week, in Nathan v. Alamo Heights Indep. School District, the United States Court of Appeals for the Fifth Circuit, sitting en banc, upheld an indistinguishable Texas law. And I mean indistinguishable in a literal sense. The Fifth Circuit majority made no effort to distinguish Stone. Instead, it said that it did not need to follow Stone. |
| Yet the Supreme Court itself has not overruled Stone. True, the case dates from a period when the Court was more vigilant than it has lately become in enforcing what Thomas Jefferson called “the wall of separation between Church & State,” but that does not render Stone a dead letter. To the contrary, as the Supreme Court made clear in the 1989 case of Rodriguez de Quijas v. Shearson/American Express, Inc., lower courts like the Fifth Circuit must give effect to Supreme Court precedents unless and until the Supreme Court itself overrules them. |
| In Nathan, the Fifth Circuit said that Stone reached the result it did by applying the Lemon test (so-named for the 1971 case of Lemon v. Kurtzman), but that Lemon was overruled no later than 2022, when, in Kennedy v. Bremerton School District, the Supreme Court said that it had “long ago abandoned Lemon.” That’s fair enough if the question is whether a federal appeals court must apply Lemon, but the Fifth Circuit was wrong in its further conclusion that it was free to disregard Supreme Court precedents that relied on Lemon. Indeed, the Supreme Court seemed to anticipate exactly this scenario when, in Rodriguez de Quijas, it said this: “If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.” |
| Is There a “Progeny” Exception to the Obligation to Follow Supreme Court Precedent? |
| To be sure, the Fifth Circuit en banc majority did not exactly ignore Rodriguez de Quijas. Rather, it purported to find an exception to the obligation to follow a Supreme Court precedent when a subsequent Supreme Court case overrules not only that case but also its “progeny.” |
| Yet that too is mistaken. It is true that in Kennedy the Court said that a lower court should not have relied on cases applying the Lemon test (its progeny) to extend Lemon to a new context—there, the question whether a high school football coach praying on his own time but joined by students violated the Establishment Clause. But the Kennedy Court did not say that lower courts are free to ignore any and all precedents relying on Lemon when they apply directly, as Stone applies to Texas no less than to Kentucky. |
| Put differently, Kennedy did not craft a progeny exception to Rodriguez de Quijas. Indeed, Kennedy did not even cite Rodriguez de Quijas for the obvious reason that Kennedy did not involve the question whether a lower court is obligated to follow the progeny of an overruled case. |
| Although the Fifth Circuit did not adequately justify its failure to follow Stone, perhaps the decision can be read to say that there should be a progeny exception. The court characterized the overruling of Lemon as a “sea change.” Looking to prior sea changes might support a progeny exception. |
| Consider the sea change that occurred in the 1937 case of West Coast Hotel v. Parrish. In upholding a Washington state law setting minimum wages for female workers, the decision directly overruled the 1923 decision in Adkins v. Children’s Hospital, which had invalidated a similar federal statute applicable to the District of Columbia. In so doing, the Court repudiated an entire line of cases that had construed the due process clauses of the Fifth and Fourteenth Amendments to instantiate a version of laissez-faire capitalism. West Coast Hotel thus worked a sea change. Following the ruling, a lower court would presumably have been warranted in upholding a state law setting maximum hours for people working in bakeries, even though the 1905 decision in Lochner v. New York—the case whose name had become a shorthand for the laissez-faire era—had invalidated such a law. |
| Even then, however, it was not immediately clear how much of a sea change West Coast Hotel worked. It would take another quarter century for the Supreme Court to fully articulate the post-Lochner framework of toothless judicial review of economic regulation. As late as 1963, in Ferguson v. Skrupa, the Court found it necessary to reverse a lower court decision that, in reliance on pre-West Coast Hotel precedents, had invalidated a Kansas law restricting debt adjustment by non-lawyers. |
| More recently, the Supreme Court cautioned that even sea changes may have a limited impact on the precedential force of progeny. Consider the ruling two years ago in Loper Bright Enterprises v. Raimondo. There, the Court overruled Chevron U.S.A., Inc. v. NRDC and the practice of granting deference to reasonable administrative agency interpretations of ambiguous federal statutes. But the Loper Bright Court specifically rejected the progeny implication. In his majority opinion, Chief Justice John Roberts made clear that new agency interpretations would not receive Chevron deference but cautioned that it was not calling “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.” |
| Perhaps one could argue that the Loper Bright disclaimer for statutory stare decisis should not apply in constitutional cases. After all, stare decisis is supposed to be weaker in constitutional cases than in statutory ones. However, that distinction seems unwarranted. The better takeaway from Loper Bright is that specific holdings of the Court remain entitled to whatever stare decisis force they had before the methodological sea change. |
| What Remains of Lemon |
| There are at least two reasons for the Loper Bright caution. First, in many instances a decision that relies on a subsequently overruled methodology may have inspired the kind of reliance that warrants adherence to stare decisis. That is plainly true of many agency regulations that were upheld under Chevron. Businesses may have invested millions of dollars to comply with a regulation that received Chevron deference but would not be valid if evaluated under the new regime of Loper Bright. |
| However, the reliance factor does not have any obvious application in the particular Establishment Clause context at issue in Nathan. School districts that relied on Stone to avoid posting donated copies of the Ten Commandments can readily now post such copies without incurring any cost. |
| Yet the second reason for the Loper Bright caution cannot so readily be dismissed. When a court decides case X, it may cite multiple precedents and reasons. If one of those precedents is subsequently overruled, case X could remain good law if the other precedents and reasons on which it relied remain valid. For example, even apart from any reliance, a case upholding a regulation based on Chevron deference could remain good law if the regulation might also have been upheld under Loper Bright. In the Establishment Clause context, we would want to know whether Stone remains good law even following Kennedy. The answer is not nearly so clear as the Fifth Circuit in Nathan thought. |
| According to the Fifth Circuit in Nathan, Kennedy completely eviscerated Lemon and replaced it with a test that asks only whether the challenged practice contradicts the Founding-era historical practices and understandings regarding the anti-Establishment principle. And that, the Fifth Circuit said, encompassed only an “official church or religion.” |
| That is a tendentious reading of Kennedy. In Kennedy the Court clearly repudiated the endorsement test under which a law or practice violates the Establishment Clause if a reasonable observer would deem the law or practice an endorsement of religion or a particular faith. But the endorsement test was only ever a gloss on one of three prongs of the Lemon test. The Kennedy Court recognized as much when it said it had “abandoned Lemon and its endorsement test offshoot.” Although there is broad language in Kennedy suggesting a repudiation of all of Lemon, that language is hard to square with other aspects of the opinion. |
| Most prominently, the Kennedy Court went to great lengths to dispute the proposition that Coach Kennedy’s post-game prayers coerced students to participate. Although the Court claimed that this inquiry related to the Establishment Clause’s original meaning, two facts stand out: first, practices could be coercive without rising to the level of an official religion; second, and more fundamentally, the coercion test itself originated as an alternative to the endorsement test and as a different gloss on a prong of the Lemon test. |
| Meanwhile, in repudiating the Lemon test, the Kennedy Court did not say whether aspects of that test might remain good law in their own right. Lemon allowed that a law or practice could violate the Establishment Clause in one of three ways: (1) if it serves no secular purpose; (2) if its primary effect is to advance or inhibit religion; or (3) if it results in excessive entanglement between government and religion. Kennedy clearly repudiated the endorsement test, which was an approach championed by Justice Sandra Day O’Connor to the primary-effect inquiry. It had no occasion to say anything and did not say anything about either of the other two inquiries. |
| Notably, the Stone Court relied on the first element, finding that posting the Ten Commandments in public school classrooms serves no secular purpose. The requirement that a law serve some secular purpose could well survive Kennedy, either on its own or because it might reflect the original understanding of the Establishment Clause. Alternatively, permanently posting the Ten Commandments in a public school classroom for impressionable children to see every day could be deemed coercive. And even if not, under Rodriguez de Quijas, the Fifth Circuit should have left it to the Supreme Court itself to say whether Stone has been overruled. |
| * * * |
| The admonition of Rodriguez de Quijas is only effective if lower court judges act in good faith because the Supreme Court has but two choices: it can allow a lower court ruling that violates the admonition to stand or it can grant review, but if it grants review, the issue for the Supreme Court will be only whether to overrule the weakened precedent, not whether the lower court jumped the gun. Rodriguez de Quijas itself illustrates that proposition, as the Court ultimately affirmed the lower court ruling. The admonition was a mere tongue lashing. |
| Nathan could well follow the same pattern, but one should not necessarily assume so. On many issues, the Fifth Circuit has proven itself more reactionary than the Supreme Court. Perhaps the near-complete elimination of the principle of church-state separation espoused by the Fifth Circuit will prove too much even for the Roberts Court. |
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