Texas lawmakers set to take up fight over Ten Commandments in public schools

From Houston Public Media:

A federal district court issued a preliminary injunction this week, blocking a Louisiana law that requires the placement of the Ten Commandments in every public-school classroom in the state. Louisiana is all but certain to appeal the decision to the conservative U.S. Fifth Circuit, setting up the possibility of a Supreme Court fight.

The case has implications for Texas, which is set to revive a similar bill that failed to pass the Texas Legislature last year. Proponents of the idea say American society is rooted in Christianity, and there should be more moral and ethical teachings in schools, while others say forcing students to see and learn the Ten Commandments would infringe upon their religious freedom and blur the lines between church and state.

The group Americans United for Separation of Church and State is behind the lawsuit against Louisiana. Its president and CEO, Rachel Laser, sees strong parallels between the moves towards Ten Commandments display laws in Louisiana and Texas.

“The biggest difference is that Texas didn’t succeed, and Louisiana did,” Laser said. “There are real similarities in these efforts to kind of impose a particular ultra-conservative Christian agenda into the public schools in both states.”

The end of a precedent

In 2022, the U.S. Supreme Court ruled 6-3 that a high school football coach had a right, protected by the First Amendment, to pray on the 50-yard-line after a game. In issuing its decision in Kennedy v. Bremerton School District, the court struck down a long-standing precedent involving the First Amendment’s Establishment Clause, which prohibits the government – including public schools – from endorsing one religion over another. That opened the door to bills like Texas’ Senate Bill 1515, which passed the Senate but narrowly missed the deadline for passage in the House at the end of the 2023 regular legislative session.

SB 1515 mandated the placement of the Ten Commandments in every public-school classroom in Texas. As the bill’s author, state Sen. Phil King (R-Weatherford), told the Senate Committee on Education, “this is the same translation that is actually on the monument on our Texas State Capitol Grounds over on the north side.”

The Ten Commandments monument on the grounds of the Texas Capitol has as much do with recent history as it does with ancient history. Amanda Tyler, executive director of the Baptist Joint Committee for Religious Liberty (BJC), noted that such monuments, which use a translation from the King James Bible, were placed around the country around the time of Cecil B. DeMille’s 1956 biblical epic, The Ten Commandments.

“That particular monument on the Texas State Capitol grounds was challenged as an unconstitutional establishment of religion back in the early 2000s, and the Supreme Court upheld its constitutionality because of the context in which it was placed,” Tyler said. “And so, I think some of the drafters and backers of this particular legislation assume that because the Supreme Court upheld…the constitutionality of the monument, that they must uphold the constitutionality of this law.”

‘History and tradition’

The argument in favor of putting the Ten Commandments in classrooms is twofold. King laid out the first part in explaining how the high court had eliminated the previous precedent for measuring whether government was becoming overly entangled with religion — known as the Lemon test, after the court’s 1971 decision in Lemon v. Kurtzman.

“The Supreme Court overturned Lemon (in 2022),” King said, “eliminating the Lemon test, and instead looking to America’s history and tradition for whether the government may recognize our religious heritage.”

The “history and tradition” argument holds that the Ten Commandments are a legal document that influenced the founding of the country, alongside the Declaration of Independence, the Constitution and the Bill of Rights, and should be displayed in schools as they are.

“The relevance in this historical respect for that as part of who we are as a nation is irrefutable in having shaped our culture, and it’s not a matter of forcing religious beliefs on anybody, but respecting and honoring something that…is part of our faith tradition as a nation that is part of our history,” said Rev. Dave Welch, president of the Houston-based Texas Pastor Council, which supported the legislation.

That’s a position that the BJC’s Tyler, an attorney and member of the Texas and U.S. Supreme Court bar, takes issue with.

“One of the reasons that people are pushing for the posting of the Ten Commandments is an assertion that the Ten Commandments are the basis of all law in the United States,” Tyler said. “And that is an unfounded statement that is simply not true. It is rather a perpetuation of this Christian nation mythology that presupposes that American law is actually religious law or based on religious law.”

Many legal scholars argue that, even with the Establishment Clause weakened, there are some lines the Supreme Court isn’t likely to cross.

“The Supreme Court has said that government cannot coerce religion upon its citizens, and that includes public-school students,” said Steven T. Collis, director of the Bech-Loughlin First Amendment Center at the University of Texas School of Law. “So, posting the Ten Commandments in a public school is arguably coercing religion upon students, because you’re forcing them to look at a particular religious text, specific to a few religions in the world, in a closed environment where the students can’t escape.”

Tom Leatherbury, director of the First Amendment Clinic at Southern Methodist University’s Dedman School of Law, doesn’t buy the history and tradition argument for either the Louisiana law or Texas’ SB 1515.

“In my view, they violate the Establishment Clause of the First Amendment, because public-school classrooms are a very confined space,” Leatherbury said. “And I know that Louisiana and I’m sure Texas will say, well, the Ten Commandments are part of our history and tradition. But I don’t think that gets them to where posting a particular version of the Ten Commandments is constitutional in a public classroom.”

Peter Salib, an assistant professor at the University of Houston Law Center, said the law is somewhat unsettled in the wake of the Supreme Court’s decision in Kennedy v. Bremerton School District. But he said, “The main idea there is children are more impressionable. They’re more easily coerced to participate, even if they don’t endorse the religious expression.”

‘We are a Christian nation’

The second argument supporters of such legislation use is more controversial: Placing the Ten Commandments in schools is a way of improving public education by teaching morals and ethics.

“Our current public education system is a disaster,” said Cypress resident Tara Beulah, a mother of two school children, speaking in favor of SB 1515 before the Senate Education Committee last year. “The teachers don’t want to be there. The parents don’t want to send their children there. The kids do not want to be there. It’s a breeding ground for chaos and confusion, when it should be a picture of order, insight, and knowledge. How do we fix this? We start by inviting God back into our schools.”

That’s a position shared by many conservative state lawmakers, including state Rep. Charles Cunningham (R-Humble). Cunningham voted for SB 1515 when it came up before the House Committee on Public Education.

“We’ve got our three main documents, you know, we’ve got our Bill of Rights, our Declaration of Independence, and the Constitution, and there’s nowhere in there, separation of church and state,” Cunningham said, though he did acknowledge the First Amendment’s Establishment Clause.

Rev. Charles Johnson, the founder and executive director of the Fort Worth-based Pastors for Children, said that argument ignores an important piece of the historical record, which is likely to come up in any legal analysis of the founders’ intent behind the Establishment Clause.

“My conservative friends remind me, accurately, that (Thomas) Jefferson didn’t use the phrase church-state separation or wall of separation, and that (James) Madison didn’t use it in the Constitution, that it’s not in the Bill of Rights,” Johnson said. “No, it was in a letter that Jefferson wrote to a bunch of Baptists in Virginia, in Danbury, Virginia, explaining, interpreting for the new country what the First Amendment to the Constitution meant.”

Cunningham said if a bill with the same language as SB 1515 came up in the next legislative session, he would probably vote for it again.

“There’s a thousand laws that can send you to jail,” he said, “but then there (are) 10 right here that can keep you out of jail.”

But the argument for placing the Ten Commandments in public-school classrooms as a means of teaching morals and ethics presents problems for a wide range of Texans, and not just those who don’t come from a Judeo-Christian heritage. The fact that the law requires a specific translation of the Ten Commandments, from the Protestant King James Bible, is hardly favorable to Catholics or Orthodox Christians, let alone Jews.

But then there’s the explanation that Beulah gave in her testimony behind her support for SB 1515.

“There’s no such thing as separation of church and state in the Constitution,” Beulah said. “We are a Christian nation, and we should start acting like one.”

That, in a nutshell, is the position of Christian nationalism. Many Texans view it as discriminatory – not just against non-Christians, but against Christians who don’t share Christian nationalists’ theology.

“To post the Ten Commandments in public-school classrooms means that any student from any family background that does not share the religious convictions about the roots of the Ten Commandments will have their conscience violated in the public trust,” said Rev. George Mason, president of Dallas-based Faith Commons. “Covenant communities are the product of people’s consent, their agreement to yield to the obligations of those commandments, and to impose them on others without that common consent is a kind of spiritual tyranny.”

Mason said Christian nationalism has already worked its way into Texas law, in the form of the state’s blanket ban on abortions.

“We are already seeing the effects of Christian nationalism in our state laws, when, for example, politicians decide based upon their religious convictions, when life actually begins, when personhood exists, and they prefer the heartbeat of a fetus to the heartbeat of the mother,” Mason said. “That is a religious conviction that is not part of a shared consensus that honors different religious perspectives. It is one religious perspective.”

State Rep. James Talarico (D-Austin), a former public-school teacher and student at Austin Presbyterian Theological Seminary, led the opposition to SB 1515 in the House Public Education Committee.

“My granddad was a Baptist preacher in South Texas, and I still attend the same church where I was baptized when I was a little kid,” Talarico said. “My faith means more to me than anything. And I firmly believe that there is nothing Christian about Christian nationalism. I think bills like this one are not only unconstitutional, not only un-American, but they’re also deeply un-Christian.”

Talarico said that, if the legislation comes forward in the next session, he’s prepared to fight it again.

“I consider the Hindu student that sits in the classroom, the Buddhist student who sits in a classroom, the atheist student who sits in the classroom to be my neighbor, and I am called as a Christian to love them as myself,” Talarico said, “and forcing my religious tradition down their throats is not love.”

That’s not an uncommon view among teachers and former teachers who consider themselves devout Christians. Rev. Omar Rouchon, associate pastor of St. Philip Presbyterian Church of Houston, was also a public-school teacher before he took up his calling.

“I had students who represented all different kinds of religious beliefs and cultural traditions, and I can’t imagine a world in which I would bring my personal religious beliefs into my classroom instruction,” Rouchon said. “I think it’s unconstitutional. And just on the face of this legislation, proposed legislation or planned legislation, I can’t imagine how that furthers the goals of public education here in the state of Texas.”

The 89^th Texas Legislature

SB 1515 passed the Senate on a party-line vote but died when the House ran out of time at the end of the regular session. After Louisiana passed its Ten Commandments display law earlier this year, Lt. Gov. Dan Patrick swore Texas would pass a version in 2025.

This time, the House has proposed the first bill mandating the placement of the Ten Commandments in Texas public-school classrooms. Freshman state Rep. Mike Olcott, a North Texas Republican, pre-filed the measure on Tuesday. But given Patrick’s determination, it’s likely the Senate will ultimately take the lead in passing such a bill in 2025.

The House is likely to be more favorable to a Ten Commandments bill following the recent election, which returned a larger, more-conservative majority to the lower chamber. Many of those Republicans elected won their primaries because of their alignment with Gov. Greg Abbott on a related issue: the passage of a school voucher law that would allow parents to use public funding to pay for private school – and in some cases, parochial school – education.

“In the voucher fight, church-state separation is our number one tool in our toolbox, and when we say that, that we think it’s wrong to take public dollars to subsidize religious private schools, the majority of people concur with us,” said Johnson of Pastors of Children.

That’s not how the majority of people voted, however. Patrick pledged to make passage of a voucher law his top priority in the new session, reserving the title of Senate Bill 2 for the legislation.

“With an expanded Republican majority in the Texas House, there is no reason Texas students should be left behind,” Patrick said in a statement last Friday. “Parents must be able to make the best decisions for their children, so they can receive the education that fits their unique needs.”

David Brockman, a nonresident scholar in religion and public policy at Rice University’s Baker Institute, drew a direct line between how Republican lawmakers would likely vote on the two issues.

“If they’re pro-voucher,” Brockman said, “they probably would be disposed, more likely to support (a Ten Commandments) bill as well.”

If that happens, and something like SB 1515 passes in the next session, Texas will be in the crosshairs of the same legal fight now enveloping Louisiana.

Collis of the University of Texas said higher courts would have to reverse a lot more precedents than the Lemon case to find in favor of Texas and Louisiana. He argued the advocates of those measures have dramatically overreached.

“In the world of religious liberty law, we have something that we refer to as the Puritan mistake, and it’s this notion that people have a tendency to want to protect their own religious beliefs but not those of others,” Collis said, adding that people of all faiths or no faiths at all have fallen into this trap. “We have a tendency to commit the Puritan mistake against people with whom we disagree, and that’s a real problem.”

If you found the reporting above valuable, please consider making a donation to support it here. Your gift helps pay for everything you find on texasstandard.org and houstonpublicmedia.org. Thanks for donating today.