St. Mary's Law Journal
Abstract
This Article contends that the facially unconstitutional introduction of mandatory Biblical instruction into Oklahoma public schools and mandatory posting of the Ten Commandments in Louisiana and Texas public schools reflect a deliberate strategy to bring Everson v. Board of Education[1]—which incorporated the Establishment Clause against the states vis-à-vis the Fourteenth Amendment—before the review of a hyper-partisan Supreme Court, with the ultimate goal of its reversal, allowing endorsement and declaration of religion on a state level.[2] The Article will demonstrate that this is consistent with nearly two decades of Religion Clause jurisprudence, culminating in the overturn of the long-standing Lemon v. Kurtzman[3] test in favor of a vague “history and tradition”[4] approach in Kennedy v. Bremerton School District,[5] and is likewise consistent with the constitutional philosophy of Justice Clarence Thomas, who believes that the Establishment Clause was never meant to bind the several states. Thomas’s disincorporation theory is also consistent with the sentiments and biases of the Court’s conservative supermajority, the objectives of the Christian Nationalist movement, and the Heritage Foundation’s “Project 2025,” which calls for the reshaping of the United States as a Christian theocratic state. Part I analyzes the incorporation of the Religion Clauses through the Fourteenth Amendment, the half-century of subsequent Religion Clause jurisprudence, and the Roberts Court’s decisions reframing Establishment Clause concerns as subordinate to religious discrimination claims. Part II focuses on Justice Thomas’s disincorporation theory, critiquing its historical foundations and exploring its potential to unravel established Religion Clause doctrine. Part III uses the Oklahoma, Louisiana, and Texas mandates as case studies in constitutional brinkmanship, evaluating the strategic use of state legislation and administrative action to provoke a judicial reversal of Everson, and the far-reaching consequences such a ruling would entail. Part IV examines the historical role of religion in American public life, tracing how cultural and political forces have influenced constitutional understandings of church-state relations and dictated the history and tradition of religion in the United States.
[1].Everson v. Bd. of Educ. of Ewing Tp., 330 U.S. 1 (1947).
[2].See id. at 8 (recognizing the First Amendment forbids state advancement or suppression of religion in public schools and rejects entanglement between church and state).
[3].Lemon v. Kurtzman, 403 U.S. 602 (1971).
[4].Kennedy v. Bremerton Sch. Dist., 597 U.S. 507, 546–47 (2022) (Sotomayor, J., dissenting).
[5].Kennedy v. Bremerton Sch. Dist., 597 U.S. 507 (2022) (majority opinion).
First Page
539
Last Page
616
Date Created
3-31-2026
Publisher
St. Mary's University School of Law
Editor
Dakota Nichols
Recommended Citation
Ian G Klein,
In Bad Faith: The Binding of the Establishment Clause on the Altar of Free Exercise,
57
St. Mary's L.J.
539
(2026).
Available at:
https://commons.stmarytx.edu/thestmaryslawjournal/vol57/iss3/4
