When Texas turned blue in the midterm elections, it raised a potential complication for Supreme Court litigation over Ten Commandments displays in public schools. Ken Paxton, the outgoing Texas attorney general and failed U.S. Senate candidate, flagged the issue in his brief to the justices Tuesday, citing the Democratic sweep as a reason for the justices to reject review of the matter.

“Among other factors, the recent election in Texas renders this case a particularly poor vehicle,” GOP state officials wrote, adding that the incoming Democratic attorney general “has publicly stated that he ‘will not defend’ the challenged law, likely depriving this Court of an adversarial presentation.”

The state’s opposition came in response to a petition from a religiously diverse group of Texas families. They want the justices to reverse an appeals court ruling that approved of the state law, which mandates the display of a state-selected Protestant version of the commandments in classrooms.

The families will have a chance to file a final reply brief before the justices decide whether to grant review of their petition. It takes four justices to do so. The court will sometimes appoint an independent lawyer to argue for an abandoned position if the justices want to decide an issue but the parties are in agreement.

Separately, there is a petition pending from a Louisiana teacher regarding that state’s displays. Louisiana officials likewise urge the justices to deny review. The court can choose to take up any combination of the pending petitions or neither of them. The justices aren’t on a deadline to decide what they want to do.

The Texas families point to the court’s 1980 precedent that rejected a similar Kentucky law. “Nearly fifty years ago, Stone v. Graham … held that permanently posting the Ten Commandments in public-school classrooms violates the Establishment Clause,” the petition said, referring to that precedent and the First Amendment clause that says, “Congress shall make no law respecting an establishment of religion.”

Today’s court is more enthusiastic about enforcing the amendment’s protection of the free exercise of religion as opposed to the establishment prohibition.

The Texas petition raises both issues: whether the establishment clause “forbids a state from mandating the permanent, conspicuous display of a government-selected version of the Ten Commandments in every public-school classroom” and whether “permanently displaying the Ten Commandments in every public-school classroom interferes with parents’ Free Exercise Clause right to direct their children’s religious education and burdens children’s religious freedom.”

The matter has sharply divided the U.S. Court of Appeals for the 5th Circuit, which covers Texas, Louisiana and Mississippi.

One group of judges on the circuit that ruled against the families said the Supreme Court’s Stone precedent from 1980 has been weakened by more recent high court rulings. They also said the Texas law “authorizes no religious instruction and gives teachers no license to contradict children’s religious beliefs (or their parents’),” and that no student is “made to recite the Commandments, believe them, or affirm their divine origin.”

Dissenting judges on the circuit said Stone still controls the analysis until the justices explicitly say otherwise. They also said the families had a winning free-exercise claim, one of the reasons being that the commandments “are plainly religious, and their contents are — by their very nature — plainly instructive.”

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