The full Fifth Circuit U.S. Court of Appeals is reconsidering a three-judge panel’s ruling that the state’s Ten Commandments law is unconstitutional. The ruling puts on hold the law that requires all public school classrooms to display the Ten Commandments. Loyola New Orleans law professor Dane Ciolino says this decision was not exactly unexpected.
“In some ways, it’s not a surprise that this on-ball rehearing was granted by the full court. The Fifth Circuit is known to be a very conservative circuit court within the federal appellate court system,” Ciolino said.
Ciolino says the state is arguing that a 1980 Supreme Court opinion that invalidated a similar law passed in Kentucky should not be used as precedent.
“Later cases have rejected the analysis used back in 1984, an approach that’s more grounded in history and tradition than what used to be a tripartite balancing test,” Ciolino explained.
All that said, Ciolino says it will be an uphill climb for the state to prevail before the full Fifth Circuit.
“If the Supreme Court’s opinion from 1980 is inconsistent with its more recent establishment clause jurisprudence, only the Supreme Court can overrule its own precedent,” Ciolino noted.
Ciolino says if the full Fifth Circuit does not rule in favor of the state, there’s no guarantee that the Supreme Court will take up the state’s expected appeal.
