Ten Commandments and the Separation of Church and State in Texas

"That's not fair and that's not American" - Rep. John Bryant

With oral arguments in the Oklahoma charter school case, today has been a big day for separation of church and state. In a much less public event, yesterday was also big for church-state separation in Texas. The Texas House of Representatives Committee on Public Education had hearings on HB 10 which would require schools to post the decalogue in every classroom.

During the hearing, good questions and bad history was on display. I want to post a lengthy segment of the hearing. This segment contains an inspired defense of separation of church and state presented by Representative John Bryant (D-Dallas). Bryant served in the U.S. House of Representatives from 1983 to 1997 and then was elected to the Texas House in 2022.

At issue in this clips is the fairness of the state forcing religious scripture on non-Christian students. This is a six minute clip in which Rep. Bryant makes a case that the bill is not fair to non-Christian students in his district.

In answer to Rep. Bryant’s question about fairness, Matt Krause — an attorney for First Liberty, an organization defending the bill — responded that the reason it is fair is because the Founders based the government on the Ten Commandments. In other words, blame the Founders for favoring Christianity over other religions. Then Rep. Bryant finishes by again declaring his belief that the motive of the bill is religious discrimination.

Transcript:

Representative Bryant.

I think I heard you say earlier that this really isn't a religious recitation of words. I don't like to use the word document because this compilation of words is not in the Bible in this order. There's three different places in the Bible where pieces of it are found and somebody put it together and put it out here on a monument. So it is, however, all these words did come from the Old Testament, even though they didn't come necessarily in this order. And you made the comment earlier that it only has God in a few places. So let me read to you what's in the bill here.

It says, “I am the Lord thy God. Thou shalt have no other gods before me.”

Skip the next line. “Thou shalt not take the name of the Lord thy God in vain. Remember the Sabbath day and keep it holy. Honor thy father and thy mother that thou may be long upon the land which the Lord thy God giveth thee.”

Now are you maintaining that that's a religious...

Matt Krause: I don't believe I ever said that I did not think the 10 Commandments were religious. I think it's inescapable that it's religious in nature. It's the very essence of it. What I was saying from a constitutional perspective is when we had the lemon test from 1971 to 2022, there was almost a presumption of unconstitutionality. (Cross talk)

Rep. Bryant: Now I'm not. I'm on the should we, not on the could we. Okay, I'm not interested in any constitutional debate here, because it will be litigated and somebody will decide if this passes. I'm just talking about what we heard Mr. Talarico talk about and I mentioned a little bit earlier as well about a child in the classroom who is not a Christian or a Jew seeing on the wall Christian Jewish scripture. That's really what's stake here. And the question that I previously asked Mrs. Noble, we're a nation of all kinds of people, all kinds of faiths. And in order to hold it together, we have a constitution which makes some rules.

The basic idea is whatever we pay for with our tax money, all of us together, that money is not used to raise up one person's religion over another person's religion. Yet this bill says to come to another question that was raised earlier with regard to are we forcing anything, “a public elementary or secondary school shall display in a conspicuous place in each classroom of the schools, of the school a durable poster or framed copy of the Ten Commandments that meets the requirements of subsection B,” which is the wording that I just read a moment ago. Now we are requiring every classroom to have it, and the words come right out of the Christian Jewish Bible, and half of them are talking about God or the Lord or making one reference or another to a deity.

Now how do we ask non-Christians and Jews to pay taxes and non-religious people to pay taxes to build a building and put our words, which I revere as much as you do, on the wall of that classroom and call that fair?

Matt Krause: And I think you go back to the fact that it wasn't our choice that the founding fathers used that document to build a lot of the foundational laws and structures and principles that we have. But that fact is inescapable as well. That's what they used. And I think it's good and it's right for us to remind students of those foundations of law and those foundations of society that our country was built upon. And I think it's good for them to remember that.

This is a very significant exchange. First of all, Rep. Bryant wonderfully demonstrated the problem with posting the Ten Commandments. It isn’t fair, and I want to add, it violates the religious pluralism implied in the First Amendment. There is no question that the Texas legislature will favor one religion over all others when they pass HB 10.

To answer that obvious favoritism, Matt Krause blames it on the Founders saying that they based the government on the Ten Commandments. I want to ask where did they do that? When did they do that? I don’t want to see Founders quotes about religion in some general sense. I want to see something linking the Ten Commandments with the Constitution. You will have a hard time finding it. In short, I do not believe Matt Krause or David Barton sitting beside him can back up those claims. If there are any additional hearings, I hope a legislator asks Krause and Barton where, when, and how the Founders based our current government on the Ten Commandments. Back to the clip.

Rep. Bryant: See, one moment you're a historian, the next moment you're talking all about deism and religion, and all three of you guys have a religious vocation. Wouldn't you agree?

Matt Krause: It's a relationship with the Lord.

Rep. Bryant: But you're working for institutions that are essentially religious, are you not? And that you have a religious vocation.

Matt Krause: First Liberty, for sure.

Rep. Bryant: For Wallbuilders? Definitely, right? All right, so let's be real with each other here. You've got a religious motive for wanting to see this on the wall.

Matt Krause: No, as a constitutional attorney, what I want to see is a restoration of what the expressions that we used to have in this country that we lost in 1980 by a flawed test and a bad opinion by the Supreme Court. I want to get us back that status quo ante that we had for 1789 to 1980. We should get back to that because I think that was well and good.

Rep. Bryant: Thank you. With all due respect, I'm not buying that. I'm thinking about the people that I represent. I represent 200,000 people like everybody else up here. Just take them. I've got every kind of person in my district. We have schools where there's 20 languages that are spoken there and they're trying to get everybody to speak in English. They're coming from all over the world, or their parents did. They're Americans. We have people been here generations and generations that are not Christians and Jews.

And you're asking us to put Christian and Jewish language on the wall of classrooms that they paid for. That's not fair, and that's not American.

Matt Krause: We'll have to agree to disagree.

I don’t buy it either. David Barton and Matt Krause have been on a prolonged mission to elevate Christianity to a favored status in American culture and America’s schools. They are using faulty history to privilege Christianity over the religions of their fellow citizens. If the Founders wanted to privilege Christianity, why did they keep Christian language out of the Constitution, insert a clause prohibiting a religious test for office, and then amend the law of the land to prohibit the establishment of any religion?

Texas will probably follow the lead of other states and require this but they are creating a trend where none existed before despite what Barton told the legislators. Prior to the 1960s, only three states had a 10 Commandments policy. Only North Dakota and Mississippi required some version of it. Minnesota only allowed it. In 1962, social scientist Richard Dierenfield surveyed schools nationally to discern their practices regarding religion in schools. Regarding the decalogue, he reported the following:

1. Display of the Ten Commandments in Classrooms: Three states use this device as a technique to inculcate in the students a knowledge of and respect for these spiritual laws of the Old Testament. In Minnesota an attorney general's opinion in 1952 permits the display of the Ten Commandments in public school classrooms.” The Mississippi Educational Code requires instruction in the Ten Commandments.” The North Dakota school laws state “It shall be the duty of the School Board, Board of Trustees, or Board of Education of every school district . . . to display a placard containing the Ten Commandments of the Christian religion [sic] in a conspicuous place in every school room, classroom or other place in said school where classes convene for instruction.” ** How much effect such display has on the religious life of the pupils is impossible to gauge.*

I don’t know for certain if other states required or allow Ten Commandments postings prior to that time. In his survey, Dr. Dierenfield didn’t find that the Ten Commandments were as integral to American public education as David Barton and his followers want us to believe. Sure, some schools and teachers probably used them in classrooms but not all did. I have seen no evidence that teaching about them or posting was a national standard. Just waving around a couple of old textbooks doesn’t count for evidence.

*Richard Dierenfield, Religion in American Public Schools, (Washington, DC: Public Affairs Press, 1962), 71.