The Supreme Court has recently been addressing the adherence of lower courts to precedents that have not been formally overruled but are considered outdated. In its 2022 decision, Kennedy v. Bremerton School District, the Court criticized the Ninth Circuit and other lower courts for continuing to apply the three-part standard from Lemon v. Kurtzman, a precedent that had not been used by the Supreme Court in a decade. The Court later declared Lemon “abrogated.”
In Medina v. Planned Parenthood, at the end of this term, the Supreme Court applied a similar approach to three other decisions. The case questioned whether a Medicaid program provision granted individuals a private right of action under 42 U.S.C. § 1983. The Fourth Circuit had relied on previous Supreme Court precedents but was admonished by the Court for doing so when more recent cases suggested otherwise.
The pattern indicates a shift where lower courts are being criticized for following precedents without formal overruling by the Supreme Court. This raises questions about which precedents might be next in line for such treatment.
One candidate is Locke v. Davey from 2004, where Washington State refused an educational scholarship to a student studying for ministry due to its Blaine Amendment. The decision allowed “play in the joints” between Free Exercise Clause and Establishment Clause interests but has since been undermined by later decisions like Trinity Lutheran Church v. Comer, Espinoza v. Montana Department of Revenue, and Carson v. Makin.
These subsequent rulings have narrowed Locke’s applicability and questioned its standing as they expanded protections under the Free Exercise Clause against discrimination based on religious status or behavior.
Given these developments, there is uncertainty about how lower courts should handle cases involving ministerial training carve-outs in generally applicable grant programs when Locke remains technically valid but substantially weakened by newer rulings.
Lower courts face risks in either waiting for explicit overruling or preemptively treating Locke as abrogated based on recent jurisprudence trends favoring First Amendment rights protections.
