Federal judge blocks Texas law forcing the Ten Commandments in schools from taking full effect

The judge called the state's attempt to push Christian doctrine into public schools coercive and divisive

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Rarely will you see a U.S. District Court judge decide a church/state separation case with as much sheer joy as Fred Biery just did today when he issued a preliminary injunction blocking Texas from forcing (at least some) public schools from displaying the Ten Commandments—King James’ Version only—in every classroom.

A Ten Commandments monument (image via Adobe Spark)

I’ll get to his ruling in a bit, but let me remind you what this case is all about.

Earlier this year, Texas passed a bill to post the Decalogue in public schools, appropriately titled SB 10. Like so many other iterations of these bills, this one said every classroom would have to display a durable or framed 16” x 20” poster of the Ten Commandments. They could be privately donated or bought “using district funds.” All of the posters would have to read as follows:

The Ten Commandments

I AM the LORD thy God.

Thou shalt have no other gods before me.

Thou shalt not make to thyself any graven images.

Thou shalt not take the Name of the Lord thy God in vain.

Remember the Sabbath day, to keep it holy.

Honor thy father and thy mother, that thy days may be long upon the land which the Lord thy God giveth thee.

Thou shalt not kill.

Thou shalt not commit adultery.

Thou shalt not steal.

Thou shalt not bear false witness against thy neighbor.

Thou shalt not covet thy neighbor’s house.

Thou shalt not covet thy neighbor’s wife, nor his manservant, nor his maidservant, nor his cattle, nor anything that is thy neighbor’s.

The law also includes a provision requiring the attorney general of the state to defend districts that get sued over this. If they were to lose the case, the state would then be “liable for the expenses, costs, judgments, or settlements of the claims arising out of the representation.” Which is to say if this ended up backfiring on Christian Nationalists, don’t worry, because taxpayers will foot the bill for their ignorance.

This push hasn’t always worked. Two years ago, a similar bill didn’t make it to a final vote in the State House. That wasn’t a problem this time. The Republicans (and a handful of Democrats) simply ignored all the opposition, including a letter signed by over 150 Christian and Jewish leaders who said the bill “undermines the faith and freedom we cherish.”

Texas wasn’t the first state to do this, either. Louisiana passed a nearly identical law last year, but a federal judge struck it down as unconstitutional and an appellate court recently upheld that decision. Arkansas passed its own version of the bill last month, and they’ve already been sued over it. Texas hoped to be the largest and most influential state to get this one on the books.

Then they were sued.

The 16 families fighting the state were represented by Americans United for Separation of Church and State, the ACLU of Texas, the ACLU (national), and the Freedom From Religion Foundation. (Simpson Thacher & Bartlett LLP assisted with the case for free.) Those were basically the same groups that filed both the Louisiana lawsuit and the Arkansas one.

Interestingly enough, they didn’t sue the state. This lawsuit, technically titled Rabbi Nathan v. Alamo Heights Independent School District, went after the school districts. It said the kids in those families shouldn’t be force-fed this harmful religious messaging. It also mentioned the fact that the U.S. Supreme Court’s recent decision in Mahmoud v. Taylor—the one that allows religious families to “opt out” their children from public school lessons that contradict their religious beliefs—gave them the right to oppose the Ten Commandments being shoved in children’s faces. (It was truly ingenious that these families were citing, in their defense, a Supreme Court decision meant to give (mostly) Christian zealots veto power over LGBTQ-themed books in the classroom.)

Under this precedent, permanently posting the Ten Commandments in every Texas public-school classroom—rendering them unavoidable—is plainly unconstitutional. The displays will pressure students, including the minor-child Plaintiffs, into religious observance, veneration, and adoption of the state’s favored religious scripture. The displays will also send the harmful and religiously divisive message that students who do not subscribe to the Ten Commandments—or, more precisely, to the specific version of the Ten Commandments that S. B. 10 requires—do not belong in their own school community, pressuring them to refrain from expressing any faith practices or beliefs that are not aligned with the state’s religious preferences. And the displays will substantially interfere with and burden the right of the parents-Plaintiffs, who are Jewish, Christian, Unitarian Universalist, Hindu, or nonreligious, to direct their children’s education and upbringing when it comes to religious questions and matters.

Along the way, they included receipts from lawmakers who very clearly voted for this bill because they wanted to foist Christianity on kids, including Lt. Gov. Dan Patrick, who said this law meant that students “in every classroom in Texas, they are going to see the Ten Commandments, and they are going to know about God.” The bill’s sponsor Sen. Phil King also said, “[W]e want every kid, [pre-K] through twelve, every day, in every classroom they sit in, to look on the wall and read… those words that God says because we want them to understand how important that those statements of God, those rules of God, are that they see them in their classroom every single day of their public education.”

The lawsuit was also interesting because there was a good chance it would eventually end up in front of the notoriously conservative Fifth Circuit Court of Appeals, but that’s the very court that already struck down Louisiana’s law.

Much like the Arkansas lawsuit, this one noted that a SCOTUS decision from a case from nearly five decades ago, Stone v. Graham, declared a virtually identical law in Kentucky unconstitutional. That was the ruling cited by the district court judge who struck down Louisiana’s law, who said in his ruling, “This District Court remains bound to follow Stone until the Supreme Court overrules it.”

The lawsuit also noted that in the Stone case and in Louisiana, the Ten Commandments were required to have a “context statement”—a disclaimer of sorts—alongside the posters, explaining the supposed historical relevance of the Decalogue. They didn’t even bother with that in Texas. So if those previous laws were declared illegal, this one was even more egregious.

The fact is that by mandating the Ten Commandments in every classroom, the state is effectively telling kids which religion counts—and which ones don’t. They’re sending a message that kids from non-Christian families (or the “wrong” kind of Christian ones!) are second-class citizens.

The lawsuit said the state was violating the First Amendment’s Establishment and Free Exercise clauses. But because lawsuits take a while to get resolved, the Plaintiffs asked the judge for a preliminary injunction to prevent the law from going into effect on September 1 as intended—before the start of the next school year.

And that’s what Judge Biery did today.

The Clinton-nominated judge blocked the school districts named in the lawsuit from putting up the Ten Commandments on September 1—and we now await his decision to see whether that applies to public schools across the state.

But his decision is worth reading in full because the first 20 pages cover the history of religion—and religious differences. The ruling even opens with the heading “In The Beginning…”

Biery asks readers to consider an alternative reality in which a Muslim-majority community voted to post these Ten Commandments-like verses from the Quran “in all public buildings and public schools”:

Say, O Prophet, come! Let me recite to you what your Lord has forbidden to you: Do not associate others with Him in worship. Do not fail to honour your parents. Do not kill your children for fear of poverty. Do not come near indecencies, openly or secretly. Do not take a human life, except with legal right. This is what He has commanded…

For your Lord has decreed that you worship none but Him. And honour your parents. If one or both of them reach old age in your care, never yell at them. Rather, address them respectfully.

Biery concludes: “While ‘We the people’ rule by a majority, the Bill of Rights protects the minority Christians in [this town] and those 33 percent of Texans who do not adhere to any of the Christian denominations.”

We then get into a history of the universe—and the creation of religions—that somehow cites singer Kenny Chesney. (Impressive for a ruling that’s only 55 pages!)

(He later mentions atheists and agnostics, too.)

Biery brings up how believers of those various religions have held contradicting beliefs: They believe in grace, but they also have a “historical and continuing pernicious and pervasive tendency to kill other humans and confiscate the property of those, sometimes even within the same religion, who do not believe as they do.”

He summarizes where we’re at now with a reference to Sonny and Cher:

That violent history gives rise to the question: “Haven’t we evolved?” Other than size and longevity, the answer clearly is: “Of course not.” “The Beat Goes On.”

Then we get into the American colonial religious history, where Christians persecuted other Christians… before Biery points out that bad things happen when “majoritarian government and religion [join] hands.” To make his point, he shows a picture of “Hitler greeting Reich Bishop Ludwig Muller and Abbott Albanus Schachleitner as honorary guests” at a Reich Party Rally for Unity and Strength in 1934:

(If Texas lawmakers were already going to be furious with his ruling, this judge clearly wanted to go all the way.)

While bringing up conflicts in Israel and Iran, the judge points out that when the government joins hands with religious leaders, many people are left out entirely—or pressured to abandon their beliefs in order to profess different ones.

At this point, we’re only at page 12 of the ruling.

Eventually, though, the judge gets around to making the obvious point that the United States, ever since its founding, has honored church/state separation. Our tradition backs that up. Our history backs that up. And legal precedent backs that up.

The case, he writes, boils down to two questions: (1) Is the Texas Ten Commandments law merely about exposing kids to the ideas expressed on the list… or coercing them into accepting Christianity? And (2) does the Fifth Circuit’s decision (in Roake v. Brumley) to strike down Louisiana’s law apply here?

When it comes to coercion, the judge spends page after page talking about each of the Plaintiffs and their legitimate concerns that their kids will be taught religious doctrine that violates their own beliefs. Just to name a few examples (all direct quotations from the ruling):

• The displays’ references to “manservants” and “maidservants” convey that people can be treated as property, which Ms. Lemaster and her husband strongly disagree with as a matter of faith.

• … Ms. Martin and Mr. Barker believe that the displays will impose one set of religious values and beliefs on H.B.M. over their family’s values, which include the importance of personal freedom in matters of religion.

• The text in the Act is antiquated, treats some people as property, and includes patriarchal and gendered language—all of which conflict with the Martins’ Baptist beliefs, which value equality and respect for all people;

• The Nordens’ allege the version of the Ten Commandments required by S.B. 10 does not reflect their beliefs, Jewish principles more generally, or the religious beliefs they are teaching A.N. and E.N. Rather, they assert that it is a Christian interpretation of the Commandments that is exclusionary of non-Christians, including Jews who believe in the Ten Commandments.

• Even within the Hebrew Bible, there are at least two versions of the Ten Commandments, and the wording differs between them. Displaying a single version of the Ten Commandments will suggests to D.F., E.F., and F.F. that the Commandments are clear and unambiguous, whereas Rabbi Fixler believes they are not.

You get the idea. All these plaintiffs have strong, faith-based (or secular-based) reasons for not wanting their children taught that the Ten Commandments they’ll see on those posters are universal truths.

What about the Fifth Circuit’s decision?

The judge notes the differences between the Texas and Louisiana laws. They’re mostly the same, he says, but here are the differences:

• The Texas posters have to be larger (16” x 20” compared to Louisiana’s 11” x 14”)

• Unlike Louisiana, Texas didn’t ask school districts to adopt rules to ensure the law’s “proper implementation.”

• Louisiana’s law required a disclaimer be placed near the posters supposedly explaining the “historical relevance” of the Ten Commandments. Texas didn’t bother with that.

• Texas said the attorney general would defend school districts, but Louisiana said no such thing, implying that in Texas, this religious law and the state government are truly intertwined.

For all those reasons, the judge says he’s bound by the Fifth Circuit’s ruling. If Louisiana’s law was deemed unconstitutional, this one is way worse, so the ruling applies.

Texas lawyers tried to dismiss this case, arguing that no posters have even been put up yet, so how could anyone be offended already? But the judge rejected that argument because S.B. 10 is very clear about what’s going to happen starting September 1. It’s not hypothetical.

Furthermore, the judge says Texas lawmakers’ own statements supported the argument that there was a “religious objective” in passing this law. (Turns out that doing fawning interviews with Christian zealots on their podcasts can come back to bite you in the ass!)

What about the expert witnesses for both sides? The church/state side had Dr. Steven K. Green, who explained that the Founding Fathers supported church/state separation, that our founding documents (like the Constitution and Declaration of Independence) weren’t based on the Ten Commandments, and that there’s no “longstanding historical practice” of putting the Ten Commandments in public schools. Texas had Dr. Mark David Hall, a professor at the late Pat Robertson’s Regent University, who has repeatedly downplayed the threat of Christian Nationalism.

The judge’s conclusion after hearing from both men?

The Court finds Dr. Green’s opinions concerning the intent of the Founders regarding the First Amendment to be more persuasive than Dr. Hall’s testimony.

Imagine being told by a federal judge you did a shitty job of arguing the one thing you’re supposed to be an expert in…

Biery concludes that he has every right to step in right now and put a stop to this nonsense:

… There are ways in which students could be taught any relevant history of the Ten Commandments without the state selecting an official version of scripture, approving it in state law, and then displaying it in every classroom on a permanent basis.

He ultimately says children can be cruel to classmates perceived as “the other” (so why exacerbate that), Dr. Green was a better and more trustworthy historian than Dr. Hall, S.B. 10 crossing the line into religious coercion, and the Fifth Circuit’s decision is binding. So to hell with the Texas law… at least in the relevant school districts.

And because the judge wasn’t going to close without a flourish, there’s this bit at the end:

Even though the Ten Commandments would not be affirmatively taught, the captive audience of students likely would have questions, which teachers would feel compelled to answer. That is what they do. Teenage boys, being the curious hormonally driven creatures they are, might ask: “Mrs. Walker, I know about lying and I love my parents, but how do I do adultery?” Truly an awkward moment for overworked and underpaid educators, who already have to deal with sex education issues… and a classic example of the law of unintended consequences in legislative edicts.

Biery suggests Texas could put up other religious precepts in the classroom to show how we’re all united, put up the Golden Rule, or even put up a poster of “All I Really Need to Know I Learned in Kindergarten.” Whatever works. But the specific version of the Ten Commandments cited in the Texas bill? That’s unacceptable.

While some legal cases depend on how a judge interprets the facts, this one was about as clear-cut as they come. Texas passed an illegal law, made up details about American history to defend their position, and practically bragged about their true intentions along the way.

This judge saw through their scheme. And since he knows religious conservatives will flip out, he closes his ruling with some advice:

For those who disagree with the Court’s decision and who would do so with threats, vulgarities and violence, Grace and Peace unto you. May humankind of all faiths, beliefs and non-beliefs be reconciled one to another.

Amen.

That last line (before the “Amen”) would make for a far better classroom poster than anything Texas Republicans want.

The Ten Commandments proponents are now 0 for 3 in trying to force their religion in public schools. There will undoubtedly be more states trying this—and more legal appeals—but every judge who has seen these cases has knocked them down because of existing legal precedent and because there’s no history or tradition justifying the Decalogue from going up, which is a direct argument to the current Supreme Court not to budge on this either.

(Portions of this article were published earlier)

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