Louisiana’s Ten Commandments Law is Supreme Court Bait

By 2020, 37 states still had Blaine-type amendments in force in their state constitutions. But the court’s decision in Trinity Lutheran assured they would not last long. The Supreme Court effectively struck them down in Espinoza v. Montana Department of Revenue, later that year, by giving them a Hobson’s choice of sorts. “A state need not subsidize private education,” Roberts again wrote for a 5–4 majority. “But once a state decides to do so, it cannot disqualify some private schools solely because they are religious.”

Though it was technically decided on free exercise clause grounds, some of the conservative justices in Espinoza wanted to revisit the court’s establishment clause precedents as well. Justice Clarence Thomas urged his colleagues to revisit the matter in future cases in a concurring opinion joined by Justice Neil Gorsuch. “The Court’s current understanding of the Establishment Clause actually thwarts, rather than promotes, equal treatment of religion,” he wrote. “Under a proper understanding of the Establishment Clause, robust and lively debate about the role of religion in government is permitted, even encouraged, at the state and local level.”

In perhaps the most telling case, the Supreme Court sided with a high school football coach in Washington state, two years ago, who claimed he was fired for holding a “quiet personal prayer.” That description defied ample contemporary reports that the coach in question had led highly publicized prayers with students at school events and that some student-athletes felt pressured to join them—a disturbing First Amendment violation in and of itself. But the court’s conservative justices embraced the coach’s story nonetheless. He retook his old job, coached a single game, and then retired to hit the conservative media circuit.