Texas was one more state passing a law to mandate the display of the state-approved version of the Ten Commandments. That law was challenged, and U.S. District Judge Fred Biery blocked the law; Texas AG Ken Paxton asked the full 17 judges of the conservative 5th Circuit Court of Appeals to revisit the case and overturn the decision. This week they found in favor of the law. "It doesn't violate the First Amendment at all," declares the court in a ruling that depends heavily on some really special reasoning.
Paxton and the state used the tired old talking point that this isn't a religious thing-- they're just "honoring a core ethical foundation of our law" that's an important part of the nation's history and heritage and anyway there's no such thing as the "bogus" separation of church and state, which (you may have heard) is a phrase that does not appear in the Constitution (much like the Ten Commandments).
Anyway, the full court went by a slim majority for Paxton, the decision written by Judge Stuart Kyle Duncan.
First the court disposes of the Establishment Clause. And boy do they dispose of that.
If you've been following the dismantling of the wall between church and state, you may recall that Kennedy v. Bremerton, the case of the coach who wanted to lead prayers on the 50 yard line-- a case that SCOTUS decided by actively ignoring facts-- put a final stake through the heart of the Lemon Test, a three-pronged test for whether or not someone was violating the Establishment Clause (legal scholars have assured me that Lemon was not really used, anyway, but let's move on). This new decision makes it a point to dance on Lemon's grave and then announce the new test of the clause--
In place of Lemon, courts now ask a question rooted in the past: does
the law at issue resemble a founding-era religious establishment?
In other words, is the state trying to "establish" a religion the same way that the King of England established the church of England. Colonies in the 1600s achieved religious uniformity through civil power. If we don't see "laws compelling attendance at the official church; laws controlling doctrine, worship, and governance; laws punishing dissenters; laws exacting religious taxes; and laws deploying churches for public functions," then there's no infringement of the Establishment Clause.
The Texas law doesn't "tell churches or synagogues or mosques what to believe or how to worship" and it doesn't punish anyone for rejecting the Ten Commandments. It rejects the plaintiffs' argument that putting the decalogue up in a classroom is inherently coercive. "Not so," says the glib-ass judges. The law doesn't require religious observance. So, no Establishment Clause violation, because this law doesn't all look like the Church of England in the late 1700s.
The plaintiffs had a go at using the historical argument themselves, saying there's little evidence that schools had a "tradition" of posting the Ten Commandments. But that, says the court, is a whole other thing. The plaintiffs try to argue that "if a practice does not fit within some historical tradition, it violates the Establishment Clause," but "that does not follow." See (stay with me here) if something has a root in 18th century tradition, then it is okay, but just because it doesn't have a root in tradition, that doesn't mean it's not okay-- so argues the court.
Meanwhile, in states across the country today, simply allowing students to be exposed to a rainbow on a classroom poster is considered too intrusive and might offend some people's religious beliefs.
Anyway, that's the new rule according to this court-- the state can endorse, publicize, support, pick religious winners and losers, and expose students to as much religion as it wants, as long as it doesn't start punishing anyone for disagreeing.
What about the Free Exercise Clause?
The plaintiffs brought up Mahmoud v. Taylor, the SCOTUS case that involved parents who wanted to opt their children out of being exposed to books with gay stuff. The plaintiffs likely felt that Mahmoud's foundation of "parents should direct the religious upbringing of their own children" applied here, but the District Court gets around that, mostly by misrepresenting Mahmoud.
The case rested on the idea that being exposed to books with gay characters would disrupt the educational instruction of parents (the decision also rested on misrepresentation of those books as well). But the district court sees something far more sinister. "Those materials were deployed by teachers with lesson plans designed to subvert children’s religiously grounded views on marriage and gender."
But nobody is making the students recite, believe, or "affirm their divine origin" (a phrase that I think assumes a fact not in evidence), the court believes the plaintiffs didn't prove that the law "substantially burdens their
right to religious exercise."
There's lots more (Duncan uses a footnote to take issue with Biery's "creative" opinion). I'm going to just pick a few moments.
In a concurrence, Oldham argues that maybe the plaintiffs don't even have standing because this is textbook "offended observer" stuff:
From top to bottom, the idea is that the plaintiffs (1) worry that they will one day see a poster; (2) worry that they might find that poster offensive; so (3) they invoke federal jurisdiction for protection from potential, hypothetical future offenses.
This is, I guess, totally different from being offended that somebody might some day ask you to make a cake for a gay wedding.
The dissent pushes back on some of the legal arguments. Kennedy did not throw out Stone or the Lemon test, and it was plenty clear that it “observed” the “heightened concerns with protecting freedom of
conscience from subtle coercive pressure in the elementary and secondary
public schools.” The case established a concern about exactly the kind of coercion that SB 10 represents. Put a poster of commandments in front of impressionable children (with the directive that the poster be visible from any place in the room) and you have coercion. And it is true that SCOTUS went out of its way (and far from reality) to argue that the praying coach was praying privately and personally and not exerting any coercion on his players, suggesting it would have been coercive otherwise.
Oh, there are pages and pages of legal argle bargle here, papering over a decision that joins some Texas leaders in saying, "We want to promote our brand of Christianity to be the dominant religion in this state." And as always, I will argue that this kind of stuff is bad for everyone, that religion is not improved when the state tries to edit sacred texts and commandeer and control expressions of faith.
In that spirit, let's wrap this up with the opening of Judge Leslie Southwick's separate dissent.
What is not part of my dissent is a rejection of the importance of searching for faith. Religion, though, is a matter of the mind and the heart. Faith cannot flourish when it is forced. A poem voices my concern and, I humbly offer, that of the First Amendment:
The livid lightnings flashed in the clouds;
The leaden thunders crashed.
A worshipper raised his arm.
“Hearken! hearken! The voice of God!”
“Not so,” said a man.
“The voice of God whispers in the heart
So softly
That the soul pauses,
Making no noise,
And strives for these melodies,
Distant, sighing, like faintest breath,
And all the being is still to hear.”
Stephen Crane, The Black Riders and Other Lines, Lines xxxix (1895), reprinted in The Collected Poems of Stephen Crane 41, 41 (Wilson Follett ed., 1930). Like any effective poetry, these lines can give different meaning to different readers at different times. In this opinion, they capture for me that government promotion of religion in every classroom is simulated lightning and thunder, compulsorily seen and heard.
