Complicit Nullification: The Illegitimate (Abrogation) of School Religious Liberty Precedent

Louisiana has enacted legislation that mandates the display of the Ten Commandments in every public school classroom. This statutory mandate directly contradicts the Supreme Court’s extant precedent in Stone v. Graham. Legislators in Texas, North Dakota, South Dakota, Oklahoma, Tennessee, and Kentucky have also indicated plans to introduce similar unconstitutional legislation, defying the Supreme Court’s interpretations of the First Amendment’s Religion Clauses. Similarly, Texas and Florida now permit public school chaplains or Bible-based public school curricula, which violates the Court’s longstanding prohibitions on such actions, as established in its 1948 ruling in Illinois ex rel.

McCollum v. Board of Education. Although such widespread state nullification of constitutional school law is not unprecedented, the Court’s complicity in this current nullification through its revolutionary Kennedy v. Bremerton School District decision renders this state defiance movement unique. This Article argues that constitutional litigation challenging state laws modeled after the Kennedy framework will offer a necessary opportunity for the Court to remediate this complicity. Here, the Court should directly confront the state nullification of its school religious liberty precedent by reiterating the foundational principles of constitutional democracy articulated in Cooper v. Aaron, ending the illegitimate (abrogation) of Lemon v. Kurtzman through a formal overruling of its entanglement prong, and reaffirming its seventy-five years of applied historical and originalist Madisonian neutrality.

By doing so, the Roberts Court could regain some of its lost legitimacy in light of significant precedential overrulings by adhering to stare decisis with the majority of its school Establishment Clause jurisprudence in a constitutionally sound manner. Crucially, this would also enable the Court to make a necessary statement regarding the structural boundaries of the Constitution it is charged with expounding, which is especially critical now when core notions of judicial powers are being challenged to the point of erosion.