Texas lawmakers file "wildly dangerous" bills to destroy church/state separation

These bills are an "open invitation for government officials to break the law and face zero consequences," said one critic

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A troubling pair of bills recently introduced in Texas would do away with all kinds of church/state separation barriers while removing power from most of the people who have the authority to prevent religious proselytizing by a state official.

An American flag next to a church (image via Shutterstock)

House Bill 5003, sponsored by Rep. Briscoe Cain, and its partner bill Senate Bill 1879, sponsored by Sen. Mayes Middleton, share the same 13-page text and both are designed to promote Christianity at the expense of government neutrality. The awkwardly named “Protection of Religious Liberty from Nativist Jurisprudence Act” would add entire sections to the “religious freedom” section of Texas state law.

Here are some of the most disturbing elements of the bills:

Sec. 110A.051. ENFORCEMENT OF BLAINE AMENDMENTS. A governmental officer or employee may not enforce the Blaine amendments unless the United States Supreme Court overrules Carson v. Makin… and Espinoza v. Montana Department of Revenue.

The Blaine Amendment, an addition to the U.S. Constitution that was first proposed in 1875, would have banned federal money from going to religious schools. Even though it didn’t pass, dozens of states have since adopted similar laws.

In 2020, however, in Espinoza, the Supreme Court ruled that taxpayer funding could subsidize private religious education. If states offered funding for private schools at all, depending on the kind of funding program it was, they may have to extend that offer to private religious schools, too. It was a direct assault on Montana’s version of the Blaine amendment.

The Supreme Court reiterated that position in 2022 with Carson, a case that took place in Maine.

Texas has its own version of the Blaine amendment, but these bills say government officials wouldn’t be allowed to enforce that law unless the Supreme Court explicitly overturned those cases… which is almost certainly not going to happen anytime soon. (Which is the point.)

Simply put, these bills would allow taxpayer dollars to be funneled to private Christian schools.

Sec. 110A.052. ENFORCEMENT OF SEPARATION OF CHURCH AND STATE DOCTRINE. Except as provided in section 110A.054, a governmental officer or employee may not enforce the Separation of Church and State Doctrine against any person in this state.

This is nothing more than a license for government employees to use their platforms to push their faith on others. If and when they do, who could stop them? According to this law, it would be illegal for, say, a principal to punish a teacher who preached in the classroom.

Sec. 110A.053. ENFORCEMENT OF ESTABLISHMENT CLAUSE. Except as provided in section 110A.054, a governmental officer or employee may not enforce the Establishment Clause of the First Amendment of the United States Constitution against any person other than the federal government, its officers, or its instrumentalities.

Similar to the previous clause, this section would block government officials from stopping the literal establishment of religion by state representatives. Sure, they could stop the federal government or its leaders from establishing a religion, but if you’re a local official or member of the state legislature, have at it.'

The only exceptions would apply if a court order mandated it or a “directly-on-point” Supreme Court or Fifth Circuit Court of Appeals ruling said it must happen. Those are extremely limited circumstances that hardly makes this better. The bills basically say that if government officials promote religion within the state, you can’t stop them unless you have litigated that exact issue in court and won the case.

Ryan Dudley, the State Policy Manager for the Freedom From Religion Foundation, called these bills “massive legislative overreach” in an email to me. He added:

Overall, this bill is wildly dangerous. This is a direct result of recent SCOTUS rulings—in particular Kennedy—and their utter disdain for the Establishment Clause.

The bill sponsor seems to have incorrectly taken Carson and Espinoza to deem Texas’s no-aid clause to be unconstitutional; that was not the ruling in those cases.

Another indication of just how unhinged this bill is lies in Sec.A110A.059 (e) of the bill, which states that state courts cannot rule this law unconstitutional, and don’t even have jurisdiction to consider such a challenge.

The idea that a bill can declare itself to be constitutional completely undermines the entire concept of judicial review and shows that this elected official does not care about the constitution or the rule of law, but rather only cares about imposing religious beliefs on others as much as possible. 

Nick Fish, President of American Atheists, also pointed out the financial ramifications of these bills (specifically talking about the Cain’s House version):

HB 5003 would turn our legal system on its head and force anyone who stood up against unconstitutional promotion of religion by the government potentially liable for the legal fees of the government entity that violated their rights in the first place. A student forced to pray by their teacher could be on the hook for hundreds of thousands dollars if they lost their case, even on a technicality. And the attorneys helping that student with her case would also be liable. 

What's more, HB 5003 says that even if that student were to win her case, other courts couldn't apply that as precedent, essentially requiring serial litigation over identical issues, wasting time and costing tens- or hundreds-of-thousands of dollars in extra legal expenses.

Fish added that these bills were an “open invitation for government officials to break the law and face zero consequences.”

Incidentally, Middleton tried this same stunt two years ago, when he was in the State House, but the bill went nowhere. During that same session, he also attempted to pass a bill to inject Bible readings in public schools. (No wonder he wants to get rid of the Establishment Clause protections.)

Hopefully this bill will meet the exact same fate as the version from two years ago and just get ignored despite the Republican super-majority in the Texas legislature.

As a side note, the name of the bill—the “Protection of Religious Liberty from Nativist Jurisprudence Act”—is purposely deceptive. There’s no “nativism” involved in church/state separation laws, and the entire bill is mean to promote Christian Nationalism over the religious liberty of non-Christians. It’s the sort of legislation you’d expect in a theocracy, not a secular democracy committed to religious pluralism.

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