[Texas Federalist]

Settled? Lemon was decided in 1971, I believe. Allegheny and Lee were in the late 80s and early 90s. Lemon, as recently as a few years ago was criticized by the liberal majority of the Court as "widely criticized and often ignored". While I don't have the time or energy to write a legal brief here, I can think of (and I'm sure you can too) arguments for Moore's position that are completely consistent with any of these tests. It's how the judiciary has operated since they abandoned textualism in the 40s-give the judge any logical explanation distinguishing precedent and he'll write his opinion to achieve the outcome he agrees with. You know adherence to precedent is a load of bunk. When they care about an issue, district judges find a way. Of course, Moore's lawyers, in this case, didn't really give the Court much to work with.

[lugsoul]

Okay - since you are in an arguing mood. Tell me which way Thompson could have gone to reach a different result?

[jwalsh07]

Scalia wondering how many stakes must be driven threw Lemons heart before the SCOTUS finally kills it

It's instructive here on which side posts opinions from conservatives on the court and which side posts Brennan and pals, no? :-}