Two major bills involving religion in public schools are on Texas Gov. Greg Abbott's desk awaiting action. If Abbott signs either bill, it will likely lead to legal challenges under the Establishment Clause of the First Amendment, the provision that underlies the doctrine of separation of church and state.
Senate Bill 10 would require the display of an explicitly Protestant wording of the Ten Commandments in all Texas public school classrooms. SB 11 would allow school district trustee boards and charter school governing bodies to set aside time for prayer and Bible reading.
"I do think both will trigger challenges from various groups under the Establishment Clause," said Steven Collis, a law professor at the University of Texas at Austin. "The analysis under each will be whether or not the bills coerce religion upon students or favor one religion over another."
A federal district court has already blocked a Louisiana law similar to SB 10. That case is currently awaiting a review by the U.S. Fifth Circuit Court of Appeals. Several of the same civil liberties groups that challenged the Louisiana law have pledged to sue Texas as well if Abbott signs SB 10.
State Sen. Mayes Middleton (R-Galveston) appears to have authored SB 11, the school prayer and Bible reading bill, with such a challenge very much in mind.
“Participation is entirely voluntary and requires a signed consent form from the employee or the parent or guardian of the student,” state Rep. David Spiller (R-Jacksboro) said when he presented the bill to the House Committee on State Affairs last month. “Schools must ensure that nonconsenting individuals are not exposed to the prayer or readings and may restrict the activities to designated areas or times, such as before school. Use of public address systems is prohibited, and the period may not replace instructional time.”
Collis said that could make the difference in any legal challenge to SB 11.
"Where we’re at right now is that we know schools cannot do school prayer in a way that coerces religious acts upon students," Collis said. "So, if you look at (SB 11), and if you look at the specific text, you can tell the Legislature is trying very, very hard to avoid those types of challenges."
Abbott has until Sunday, June 22, either to sign or veto the bills. If he does neither, they will become law by default.
Guthrie Graves-Fitzsimmons is still holding out hope the governor will reject the bills at the last moment. An ordained Baptist deacon who was educated in Houston public schools, Graves-Fitzsimmons is now a vice president of the Interfaith Alliance.
"Religion thrives and flourishes when it is free from the government's interference," Graves-Fitzsimmons said. "I think Governor Abbott believes that. I think he can still make the right decision for religious freedom, that religious instruction should not be led by the government. It should be led by our religious institutions, and families should get to pick who teaches their children about religion."
Much of the legal debate over both bills hinges on the interpretation of a 2022 U.S. Supreme Court decision, Kennedy v. Bremerton School District. The justices ruled 6-3 that a high school football coach's praying on the field during and after games did not violate the Establishment Clause.
Supporters of SB 10 and SB 11 hold that decision reversed several older precedents restricting religious practices or displays in public schools. Opponents of the bills contend the Kennedy ruling is significantly more limited, and those older precedents are still valid.
"Since Kennedy, I think more and more red-state legislatures are trying to see, well, where are the new boundaries?" Collis said. "Where can we have a little bit more of religiosity in schools, and what will courts allow and not allow? And they’re trying to pass creative bills to see what the new limits are, and then they’re testing them out in the courts, which is actually, arguably, precisely how our system is supposed to work."
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