Preamble to the U.S. Constitution (and this Insights Blog).
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
U.S. Const. Preamble.
First Amendment to the U.S. Constitution.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof[.]
U.S. Const. Amend. 1 (emphasis added).
The United States Supreme Court “has decisively settled that the First Amendment’s mandate that ‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof’ has been made wholly applicable to the States by the Fourteenth Amendment.” Sch. Dist. of Abington Twp., Pa. v. Schempp, 374 U.S. 203, 215 (1963).
Texas Constitution.
Under the Texas Constitution, it is the duty of the Texas Legislature to pass such laws as may be necessary to protect equally every religious denomination in the peaceable enjoyment of its own mode of public worship:
Sec. 6. FREEDOM OF WORSHIP. All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences. No man shall be compelled to attend, erect or support any place of worship, or to maintain any ministry against his consent. No human authority ought, in any case whatever, to control or interfere with the rights of conscience in matters of religion, and no preference shall ever be given by law to any religious society or mode of worship. But it shall be the duty of the Legislature to pass such laws as may be necessary to protect equally every religious denomination in the peaceable enjoyment of its own mode of public worship.
Tex. Const. art. 1, § 6 (emphasis added).
Texas Senate Bill 10.
The 89th Legislature of Texas – Senate and House of Representatives – passed Senate Bill 10 which requires all elementary and secondary schools in Texas to conspicuously display the Texas Legislature-dictated “Ten Commandments.” S.B. 10 provides that every “public elementary or secondary school shall display in a conspicuous place in each classroom of the school a durable poster or framed copy of the Ten Commandments . . . [.]” If signed by Governor Abbott (and not immediately enjoined by a federal or state court of law), SB. 10 will become effective September 1, 2025.
Among 7 other Government “commandments,” the mandated display of the Government’s rendition of the “Ten Commandments” in each public classroom must include:
“I AM the LORD thy God.
Thou shalt have no other gods before me. . . .
Thou shalt not take the Name of the Lord thy God in vain.”
If a public school in which each classroom does not include the Government-mandated Ten Commandments poster, the school “must accept any offer of a privately donated poster or framed copy of the Ten Commandments . . . [.]” (Emphasis added).
Pursuant to a House amendment to S.B. 10 (which amendment was approved by the Senate), the Texas Attorney General is instructed to defend a public school in a cause of action relating to any claims arising out of a school’s compliance with S.B. 10, and in that effort, the State of Texas, i.e., We the People of Texas, are “liable for the expenses, costs, judgments, or settlements of the claims arising out of the representation.”
The text of S.B. 10 is displayed at the end of this Insights blog.
S.B. 10 is DOGAS – Dead On Governor Abbott’s Signature – But, a Legal Battle Must Ensue.
The U.S. Supreme Court “has rejected unequivocally the contention that the Establishment Clause forbids only governmental preference of one religion over another.” Schempp, 374 U.S. at 216. Almost 100 years ago, the Supreme Court said that “‘(n)either a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another.’” Schempp, 374 U.S. at 216 (quoting Everson v. Board of Education, 330 U.S. 1, 71-72 (1947) (emphasis added).
“A law burdening religious practice that is not neutral or not of general application must undergo the most rigorous of scrutiny.” Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 543 (1993). “To satisfy the commands of the First Amendment, a law restrictive of religious practice must advance “‘interests of the highest order’” and must be narrowly tailored in pursuit of those interests.” Id. (citations omitted). “A law that targets religious conduct for distinctive treatment or advances legitimate governmental interests only against conduct with a religious motivation will survive strict scrutiny only in rare cases.” Id. (emphasis added).
S.B. 10 unmistakenly unequivocally aids religion or prefers one religion over others. S.B. 10 will forcibly impose overt religious classroom displays that are likely contrary to the sincerely held faiths of many of the People.
The Government, through S.B. 10, instructs all public school children, teachers, parents, and all others who enter into public-funded classrooms that they must have only one God, and the Government instructs the People where that Government-prescribed God must rest in the order of Gods that a free People may decide to have in their hearts, minds, and souls.
Even more disturbing, S.B. 10 will effectively usurp parental roles and rights in directing their children’s religious education, values, and upbringing. The Government truly should and is constitutionally required to not interfere with those parental roles and rights.
Children and adults alike enter public classrooms fortified by the civil liberty shield that is the U.S. Constitution. By its approval of S.B. 10, the Texas Legislature swings a Government-forged sword to deny the precious and inalienable civil liberty of freedom of religion. With its legislative sword, the Government forcibly conveys, among other things, what the Government believes is a proper religious faith and meaning and interpretation of “God.”
For the sake of all religions and the rights of the People to pray and believe as they each see fit and without unreasonable interference by the Government, S.B. 10 will hopefully be enjoined immediately upon signature by Governor Abbott.
Below are just a few – very few – of the strong and unequivocal judicial authorities on this subject. I am hopeful, if not certain, that constitutional scholars and lawyers who will attack S.B. 10 immediately upon Governor Abbott’s signing will pour buckets of additional precedents on S.B. 10 to extinguish its fiery and unconstitutional path.
Stone v. Graham, 449 U.S. 39 (1980) (per curiam) – Kentucky Revised Statute section 158.178 (1980) required the posting of a copy of the Ten Commandments, purchased with private contributions, on the wall of each public classroom in Kentucky. Held: The Kentucky statute is unconstitutional.
This is not a case in which the Ten Commandments are integrated into the school curriculum, where the Bible may constitutionally be used in an appropriate study of history, civilization, ethics, comparative religion, or the like. Posting of religious texts on the wall serves no such educational function. If the posted copies of the Ten Commandments are to have any effect at all, it will be to induce the schoolchildren to read, meditate upon, perhaps to venerate and obey, the Commandments. However desirable this might be as a matter of private devotion, it is not a permissible state objective under the Establishment Clause.
It does not matter that the posted copies of the Ten Commandments are financed by voluntary private contributions, for the mere posting of the copies under the auspices of the legislature provides the “official support of the State . . . Government” that the Establishment Clause prohibits. Nor is it significant that the Bible verses involved in this case are merely posted on the wall, rather than read aloud . . . for “it is no defense to urge that the religious practices here may be relatively minor encroachments on the First Amendment.” We conclude that Ky. Rev. Stat. § 158.178 (1980) violates the first part of the Lemon v. Kurtzman test, and thus the Establishment Clause of the Constitution.
Stone, 449 U.S. at 42-43 (internal citations omitted).
Roake v. Brumley, 756 F. Supp. 3d 93 (M.D. La.), hearing in banc denied, 132 F.4th 748 (5th Cir. 2024) – Louisiana House Bill No. 71, Act 676 (“H.B. 71”) required all public schools to display the Ten Commandments, in poster form, in each classroom. H.B. 71 required the text of the Ten Commandments to “be the central focus of the poster or framed document and shall be printed in a large, easily readable font.” The mandate effective date was January 1, 2025. Various civil liberties groups, parents, and other interested persons filed suit to declare H.B. 71 unconstitutional and, in the interim of a final order, sought to enjoin the enforcement of H.B. 71. U.S. District Court, Middle District of Louisiana held as follows, ordering (Nov. 12, 2024) a preliminary injunction against the enforcement of H.B. 71:
All of this is sufficient for this Court to find that the Act runs afoul of Stone v. Graham, 449 U.S. 39, 101 S.Ct. 192, 66 L.Ed.2d 199 (1980), and later cases without the need for further factual development. And Plaintiffs will endure considerable hardship if the Court delays a decision—specifically, a violation of their First Amendment rights. Ultimately, “one does not have to await the consummation of threatened injury to obtain preventive relief. If the injury is certainly impending, that is enough.”
Roake, 756 F. Supp. 3d at 115. The litigation in Roake is ongoing.
Insights.
For 20 years, I have dedicated much of my legal career representing religious organizations – churches, synagogues, temples, associations, and other. Most of my religious organization clients over the years have been organizations with a Christian-based faith, but I have forcefully and without hesitation advocated for the First Amendment rights and freedoms of faiths of all kinds, colors, and creeds.
In theory, my client is the First Amendment as brought to colorful and spiritual light and put into action by the multitude of faiths that make America such a wonderful and wonderfully free country.
My role as legal counsel is not to judge or scrutinize the sincerely held religious beliefs of my clients. My role is to ensure that the client, regardless of faith or creed, is afforded the right and opportunity to practice their faith within the protective blanket of the U.S. Constitution, corollary state constitutions, and other laws and, above all else, without unreasonable interference by the Government – federal, state, or local.
With conviction, I am firm that the Government cannot and must not prefer any one religion over another and must not establish a church or pass laws which aid or prefer one religion over another or usurp parental rights to shepherd the faith of their children. Indeed, this is the Law of the Land, and Texas Senate Bill 10 must be enjoined from enforcement and declared unconstitutional, for the sake of all religions and We, the People.
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TEXAS SENATE BILL 10
AN ACT
relating to the display of the Ten Commandments in public school classrooms.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 1, Education Code, is amended by adding Section 1.0041 to read as follows:
Sec. 1.0041. DISPLAY OF TEN COMMANDMENTS.
(a) Subject to Subsection (e), a public elementary or secondary school shall display in a conspicuous place in each classroom of the school a durable poster or framed copy of the Ten Commandments that meets the requirements of Subsection (b).
(b) A poster or framed copy of the Ten Commandments described by Subsection (a) must:
(1) include only the text of the Ten Commandments as provided by Subsection (c) in a size and typeface that is legible to a person with average vision from anywhere in the classroom in which the poster or framed copy is displayed; and
(2) be at least 16 inches wide and 20 inches tall.
(c) The text of the poster or framed copy of the Ten Commandments described by Subsection (a) must 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.”
(d) A public elementary or secondary school in which each classroom does not include a poster or framed copy of the Ten Commandments as required by Subsection (a) must:
(1) accept any offer of a privately donated poster or framed copy of the Ten Commandments, provided that the poster or copy:
(A) meets the requirements of Subsection (b); and
(B) does not contain any additional content; and
(2) display the poster or framed copy as specified in Subsection (a).
(e) A public elementary or secondary school in which each classroom does not include a poster or framed copy of the Ten Commandments as required by Subsection (a) may, but is not required to, purchase posters or copies that meet the requirements of Subsection (b) using district funds.
(f) Notwithstanding any other law, a public elementary or secondary school is not exempt from this section.
(g) The attorney general shall defend a public elementary or secondary school in a cause of action relating to any claims arising out of a school’s compliance with this section. In a cause of action defended by the attorney general under this subsection, the state is liable for the expenses, costs, judgments, or settlements of the claims arising out of the representation. The attorney general may settle or compromise any and all claims under this subsection.
SECTION 2. This Act applies beginning with the 2025-2026 school year.
SECTION 3. This Act takes effect immediately if it receives a vote of two-thirds of all the members elected to each house, as provided by Section 39, Article III, Texas Constitution. If this Act does not receive the vote necessary for immediate effect, this Act takes effect September 1, 2025.
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