On Tuesday (April 21), the Fifth Circuit Court of Appeals overturned previous rulings to say the state of Texas can force public schools to post a highly edited version of the Ten Commandments in public schools. The 9-8 ruling is particularly atrocious since the majority overturns a standing Supreme Court precedent on placing the Ten Commandments in schools. I’m not sure who they think died and made them the arbiters of religion, but I do know that nine people did not die to make them the Supreme Court.
Making the ruling even more galling, the majority opinion conscripted John Leland, a legendary colonial Baptist figure who fought for church-state separation, to justify their convoluted argument that the Texas law does not constitute the establishment of religion. The justices in the majority were only able to quote Leland by taking a couple of sentences out of context and by ignoring the clear words of a man who warned us that “the fondness of magistrates to foster Christianity has done it more harm than all the persecutions ever did.”
Making all of this even worse, the Texas law will now force public schools to post a gerrymandered version of the sacred text that doesn’t even match what’s found in any version of the Bible. As I previously documented in the first installment of our podcast series “A Trick of State” (which draws its name from Leland’s writings), the language required in the “Ten Commandments” laws passed over the last couple of years in Texas, Louisiana, and Arkansas is based on the Protestant KJV text in Exodus 20, but makes significant changes. It’s kind of like quoting the Pulp Fiction version of Ezekiel 25:17; it might be inspired by the Bible, but it’s not actually the biblical text. That means that if you literally ripped the Ten Commandments out of your Bible and taped them to a classroom wall in these states, the actual words from the Bible would be in violation of the law!
Left: A graphic showing the edits the Texas law makes to the Ten Commandments, with the parts in yellow kept on the posters, the parts in red deleted, and the parts in green added into the required text. Right: A graphic showing the same edits as if parts have been redacted like with the Epstein files.
States like Texas aren’t just establishing religion; they’re establishing their own state-approved text and disallowing any other version that’s held sacred by believers. It’s a clear violation of First Amendment rights. That’s why the organizations representing the multifaith group of Texas families were quick to condemn the decision.
“The Court’s ruling goes against fundamental First Amendment principles and binding U.S. Supreme Court authority,” explained Americans United for Separation of Church and State (where I serve as vice chair of the national board of trustees), the American Civil Liberties Union, ACLU of Texas, and the Freedom From Religion Foundation in a joint statement. “The First Amendment safeguards the separation of church and state, and the freedom of families to choose how, when, and if to provide their children with religious instruction. This decision tramples those rights. We anticipate asking the Supreme Court to reverse this decision and uphold the religious-freedom rights of children and parents.”
This problematic ruling is exactly the type of thing that Leland and other colonial Baptists warned against. But apparently nine justices in New Orleans are as bad at interpreting Leland’s writings as they are the U.S. Constitution. So this issue of A Public Witness rises to Leland’s defense to set the record straight.
Lions and Bears, Oh My!
The majority of the justices on the Fifth Circuit Court of Appeals try to redefine what it means to establish religion by arguing it’s just creating an official state church of one denomination and having a religious test for public office. To attempt this definitional sleight of hand, they invoked Leland to suggest that this extremely narrow definition is how people define establishment in the founding era of the United States.
“For instance, John Leland, the 18th century Baptist preacher — pondering “[w]hat were, and still are the causes that ever there should be a state establishment of religion” — answered: “over-fondness for a particular system or sect … gave rise to the first human establishment of religion, by Constantine the Great,” the majority opinion reads.
That’s it. That’s all they cited to suggest Leland would agree with them. Now I don’t know if they got that suggestion from ChatGPT or just by poor reading, but to invoke Leland to justify Texas’s law is at best absurd and at worst deliberately deceptive.
If we look at the rest of just the essay from Leland they cited, his 1791 sermon “The Rights of Conscience Inalienable,” we find a broader assessment of what religious disestablishment meant for him.
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