The Freedom From Religion Foundation is sounding the tocsin about a proposal in the Texas Legislature that would assault the constitutional wall of separation enshrined in both the state and federal constitutions.
The proposal is grandiosely and misleadingly dubbed the “Protection of Religious Liberty from Nativist Jurisprudence Act.” If passed, House Bill 5003 and companion Senate Bill 1879 would seek to ensure that state-sponsored religion will go unchecked in Texas, in particular forcing taxpayer support of private religious schools. Recently introduced in the Legislature, the bills would prohibit the enforcement of the no-aid clause in Article I, Section 7 of the Texas Constitution, which reads: “No appropriation for sectarian purposes. No money shall be appropriated or drawn from the treasury for the benefit of any sect, or religious society, theological or religious seminary, nor shall property belonging to the state be appropriated for any such purposes.”
The legislation targets the so-called “Blaine Amendment,” which a majority of state constitutions have adopted and that are also known as the “no aid” clauses because they bar public funds from going to religion, ministries or religious schools. The proposal forbids any governmental officer or employee from enforcing the Blaine Amendment in the Texas Constitution — unless the U.S. Supreme Court overturns both Carson v. Makin and Espinoza v. Montana, which involved public support of religious schools. What the bill sponsors get wrong is that in those cases, the Supreme Court did not rule that state no-aid clauses are unconstitutional. It ruled — incorrectly — that if a government is going to offer a neutral program to fund private education, then it cannot exclude an entity because it is religious.
The legislative proposal would also undermine Article 7, Section 5(c), which prohibits the Legislature from appropriating the school fund “for the support of any sectarian school.” The proposal outlandishly reads: “A governmental officer or employee may not enforce the separation of church and state doctrine against any person in this state.” And it adds: “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.” The only exceptions are if the Supreme Court or the 5th U.S. Circuit Court of Appeals were to mandate a “directly-on-point” decision. In other words, government actors using their official position to promote their personal religious beliefs cannot be stopped unless someone has litigated that exact issue in a federal appellate court and won.
In an unprecedented move, the bill sponsors want to effectively declare that a part of the First Amendment does not exist in Texas. Likewise, the proposal would bar state courts from ruling this law unconstitutional, saying they don’t even have jurisdiction to consider such a challenge.
The bill sponsors have also deployed another mechanism to stymie a party from taking legitimate action if they feel that these laws have been violated. The bill would impose attorney’s fees on any party that attempts to enforce the Establishment Clause, no-aid clause or other state/church protections if the defending party prevails. This would become a bully tactic by religious fanatics seeking to impose state-sponsored religion.
Clearly, the bill sponsors feel empowered by recent Supreme Court decisions that have undermined the Establishment Clause. In light of the elimination of the Lemon test, which was overturned in the Kennedy v. Bremerton School District decision last year, we can expect ever more Christian nationalist legislation will be introduced in legislatures across the country.
“I am dismayed to see this dangerous and divisive legislation proposed,” says Dan Barker, FFRF co-president. “These bills are indicative of the chokehold that religious zealots feel they have on this nation. The bill sponsors have completely decided to disregard our secular Constitution.”
The Freedom From Religion Foundation has almost 40,000 members and several chapters all over the United States, including more than 1,600 members and a chapter in Texas.
