Here's the thing with the Louisiana Ten Commandments in public schools law. Supreme Court precedent already said hanging them in schools violates the Constitution under the First Amendment in a case Stone v. Graham (1980). Kentucky was slammed by the justices for a similar law.
The Court summarily reversed the Kentucky courts, which held that Ten Commandment displays were constitutional *without* briefing or arguments. It was a 5-4 decision with Burger and Blackmun wanting full consideration. Only Stewart dissented on the merits. But here's the thing...
The decision rested on Lemon v. Kurtzman, a 1971 decision that laid out a test for Establishment Clause violations. Social conservatives did not like Lemon and its dead now. This gives the 5th Circuit or even the Supreme Court some room to throw cold water on Stone v. Graham.
One could argue that Lemon wasn't the force behind Stone (if playing legal formalism) by pointing to Lee v. Weisman, a 5-4 decision from 1992, where Justice Kennedy said prayer at official public school ceremonies is unconstitutional and the much hated Lemon test didn't matter.
Is there a 5-4 majority on the Supreme Court for a parallel approach to Lee v. Weisman if confronted with the Louisiana law? A majority on the 5th Circuit sitting en banc or most random three-judge panels? I'm not so sure.
Throw in the recent case Kennedy v. Bremerton that permitted a football coach to have prayers at school events, which the Court described as voluntary and not part of any official school itinerary. And that's another crack in the precedent, that provides a new opening. We'll see.
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