S4, Ep. 21: 613 Commandments: James Talarico on his defense of church-state separation as a Christian

The Texas legislature meets once every two years, and they are spending a great deal of this session on bills that would advance religion. We return to our conversation on the Ten Commandments bill in Texas, as we saw a groundswell of opposition to the bill when it headed to the state House. Amanda and Holly take a look at some viral moments, and we share an exclusive conversation with Texas state Rep. James Talarico, who spoke in opposition to this bill as a lawmaker, a former schoolteacher, and a Christian. 

SHOW NOTES:
Segment 1 (starting at 00:38): Why are we still talking about this?

Last week’s program on the Ten Commandments bill in Texas (Senate Bill 1515) is episode 20 of season 4. You can listen to it on our website.

We played the viral video of state Rep. James Talarico questioning the author of the bill. You can watch it on Twitter.

An advocate in Waco put together this petition opposing SB 1515, available for Texans who oppose the bill as people of faith to sign.

 

Segment 2 (starting at 12:39): A conversation with Texas state Rep. James Talarico

You can see video clips of the interview with Amanda and Texas state Rep. James Talarico in a Twitter thread she posted. It is also available on YouTube and on a reel posted by the @endchristiannationalism Instagram account.

Segment 3 (starting at 27:32): Putting this discussion into focus

For additional resources on the various ways religions interpret and list the commandments, a chart from New World Encyclopedia shows how different traditions order them. You can see a list of the 613 Mitzvot (Commandments) here. Visit this website for a side-by-side comparison of the Ten Commandments as listed in Deuteronomy 5 and Exodus 20.

We played a clip of Justice Ruth Bader Ginsburg questioning Paul Clement in 2005 during oral arguments in the Van Orden v. Perry case. You can listen to the full argument here, and the clip we played is from 51:24 in the audio recording of the argument.

Respecting Religion is made possible by BJC’s generous donors. You can support these conversations with a gift to BJC. 

Transcript: Season 4, Episode 21: 613 Commandments: James Talarico on his defense of church-state separation as a Christian (some parts of this transcript have been edited for clarity)

 

Segment 1: Why are we still talking about this? (starting at 00:38)

AMANDA: Welcome to Respecting Religion, a BJC podcast series where we look at religion, the law, and what’s at stake for faith freedom today. I’m Amanda Tyler, executive director of BJC.

HOLLY: And I’m general counsel Holly Hollman. Today we’re following up on last week’s episode about the Texas bill to require posting of the Ten Commandments in all public school classrooms. It’s an ongoing legislative issue, and because the episode was so well-received and because the topic is continuing to develop and receive more attention, we wanted to continue our conversation today.

Of course, we are deeply aware that this is not the most important thing happening in Texas right now. Amanda, you and I — and I’m sure all of our listeners — are continuing to reel from the two tragedies in Texas over the weekend: the shooting at an outlet mall in Allen, Texas, that claimed the lives of eight people, and then in Brownsville, Texas, a driver plowed into a crowd waiting at a bus stop outside a migrant shelter, killing at least eight people. And we know that there’s a lot of related trauma and people affected.

And as we’re talking about Texas and an important topic in the realm of religion, law, and what’s at stake for faith freedom today, we acknowledge that our topic is far from the most significant thing on the mind of Texans and their leaders right now. And yet, we want to do our work and make sure that our listeners are informed about this legislation.

AMANDA: Absolutely. I think you rightly named, Holly, that the country and particularly the people in Texas are in a state of trauma right now as this is, I think, the third mass shooting — the one in Allen, in particular, was the third mass shooting in Texas this year. Of course, last year was the shooting at the Uvalde elementary school.

And the legislature of Texas is only in session for five months every two years, and they’re in that legislative session right now, and so there was already legislation being considered to address gun violence, and I think these recent tragedies have only elevated that issue for the legislature. So they have a lot of work to do in Texas over the next few weeks, and the bill that we are talking about today is only one of many items that’s still under consideration.

HOLLY: Well, after we recorded last week and we reported on the Texas Senate committee hearing, we talked about the panels, mostly that testified in favor of that bill ‑‑ and we were clear to make BJC’s perspective known, that we oppose this bill for many good reasons ‑‑ after that there was a committee hearing in the Texas House.

And today we want to highlight this hearing, as well as a conversation you had, Amanda, with one lawmaker who spoke out against bill SB 1515 that would require the display of the Ten Commandments in each public school classroom, because he rightly got a lot of attention for his opposition to the bill.

At the outset we should say, as we noted last week, of course we come from a perspective that is not opposed to the Ten Commandments or people learning about the Ten Commandments — people teaching that, people understanding the role of Scripture in their faith and in their faith development and the teaching of their children, all of which are very important parts of religious education and part of what we call, in our tradition, “faith formation.”

But the Ten Commandments in this legislation include these biblical prohibitions on certain activity and commandments for certain religious activity that we don’t think belong in the public school classroom. We don’t oppose the teachings. We do question the government requiring this religious action in the public schools.

AMANDA: Right. It goes back to that basic idea of the separation of the institutions of church and state, that the state doesn’t try to do the job of the church, and the church doesn’t try to do the job of the state. And here I think we have a pretty clear example of the state trying to do the job of the church, picking and choosing a particular version — edited version – of a religious text, and then posting it in every public school classroom across the state of Texas.

And so since we recorded last week, the House Public Education Committee took up SB 1515, and, as you noted, Holly, Texas state Representative James Talarico, a Democrat representing a community right outside of Austin, questioned the bill’s sponsor from the House about the bill, and his short questioning went viral. We are going to include in the show notes that posting on Twitter, and just to give you a sense of that, his tweet has now been seen by more than 4 million people ‑‑

HOLLY: Wow.

AMANDA: — and the video has been viewed at least a million times. So suffice it to say, I don’t think that most hearings of the Texas House Public Education Committee get quite as much national attention as this one did.

REP. TALARICO: (audio clip) I say this to you as a fellow Christian. Representative, I know you’re a devout Christian, and so am I. This bill to me is not only unconstitutional. It’s not only un-American. I think it is also deeply un-Christian, and I say that because I believe this bill is idolatrous. I believe it is exclusionary, and I believe it is arrogant.

 

And those three things, in my reading of the Gospel, are diametrically opposed to the teachings of Jesus. You probably know Matthew 6:5, when Jesus says, “Don’t be like the hypocrites, who love to pray publicly on street corners. When you pray, go into your room and shut the door and pray to your Father who is in secret.”

A religion that has to force people to put up a poster to prove its legitimacy is a dead religion, and it’s not one that I want to be a part of. It’s not one that I think I am a part of. You know that in Scripture, it says, faith without works is — what? Is dead.

My concern is instead of bringing a bill that will feed the hungry, clothe the naked, heal the sick, we’re instead mandating that people put up a poster. And we both follow a teacher, a rabbi who said, “Don’t let the law get in the way of loving your neighbor. Loving your neighbor is the most important law. It is the summation of all the law and all the prophets.”

 

I would submit to you that our neighbor also includes the Hindu student who sits in a classroom, the Buddhist student who sits in a classroom, and an atheist student who sits in a classroom. And my question to you is: Does this bill truly love those students?

HOLLY: Well, hearing Representative Talarico, Amanda, I thought about your comment that there are a lot of Baptists and, I’m sure, other denomination-identified Christians in Texas, and he’s probably not the only legislator who has a pretty good conversational comfort with the use of his Bible. So that was interesting to hear him engage in that way, quoting Scripture, talking about his understanding of what Christianity requires.

And I think, you know, we often talk about how our biblical understanding — what’s required of us as people of faith — differs from others, and it makes using Scripture specifically for pieces of legislation a little bit risky and tricky, and there’s always room to criticize people who do that too explicitly.

But I think in this case, he was just really responding to the moment and the thrust of so much advocacy that was pushing toward the need for this from a religious perspective, which again, as we note, that’s not what we expect the legislature to do for us.

AMANDA: Well, and there’s this false choice that is often set up, that to oppose the government sponsorship of religion is to oppose the religion itself. And so I think that it was really important in this particular context for him, as he felt called and was comfortable doing, to talk about his religious perspective and why he was opposing it, not just in spite of his faith but because of his faith.

HOLLY: Right. It seemed like legitimate conversation, kind of talking back to these ideas that were promoted by the sponsors to push their view of religion on the schoolchildren.

AMANDA: And he was using his position as a member of the Texas House of Representatives, as a member of this Public Education Committee, to do so, and he wasn’t the only one in the hearing room to oppose the bill. There was actually quite a bit of opposition to the bill in the House committee.

There were three witnesses who testified in favor of the bill from some of the same groups that testified before the Senate committee: WallBuilders, Texas Values, and First Liberty Institute. But there were 12 witnesses who testified against the bill, including representatives from Texas Impact and Texas Freedom Network. And then not testifying but registering present, there were 29 for the bill and more than 350 against the bill.

HOLLY: Yeah.

AMANDA: So we saw a really strong opposition come out before the Texas House on this.

HOLLY: Perhaps growing out of the attention that the earlier hearing received in the public.

AMANDA: I think that is quite possible, and I will say that we at BJC put out an advocacy alert and encouraged people in Texas to make their views known on this particular piece of legislation. And we heard the night before the hearing that there was an advocate in Waco who reached out to our colleague Jennifer Hawks to ask how to oppose the bill. This is wonderful, wonderful advocacy.

She had already emailed her local representative and posted an online article about her strong opposition to the bill, and Jennifer encouraged her to turn her individual letter into a petition and let other Texans sign it as well, and as we record today, more than 500 people have joined her petition. So here’s a great example of people making their voice known to their elected representatives and to speak and explain why they are against the posting of the Ten Commandments in public school classrooms.

HOLLY: Yeah. I think the worst thing would be to let this bill go forward unopposed. And regardless of what happens, it would be horrible to let these voices who are pushing for this speak for all Christians, speak for religious liberty, speak for all Texans, that they think that this is the proper role of government when a closer look would lead many, many people to challenge this bill.

I also liked how Representative Talarico spoke with more confidence about faith. I think we live in times where people exaggerate the fearfulness of changing times, and there are definitely so many things to be concerned about, and people are fearful for lots of different reasons.

But he made this claim very clearly that we don’t have to rely on the government for our faith. You know, and that sounded to me like a genuine faithful perspective. And I know maybe that was one of the things, Amanda, that drew you to want to reach out to him and have more conversation with him.

 

Segment 2: A conversation with Texas State Representative James Talarico (starting at 12:39)

AMANDA: Yes. After I saw the viral video of his testimony, we reached out to Representative Talarico and asked if he’d be willing to have a conversation. And so we had a conversation over Zoom where I was able to commend him for his advocacy, for his opposition to the bill, ask him about what led him to oppose the bill, but also to share why we are opposing the bill from our religious freedom concerns.

HOLLY: So we’re going to play an extended excerpt from a conversation, Amanda, that you had with the representative on Zoom for our listeners now.

REP. TALARICO: (audio clip) Before I was a politician, I was a middle school teacher, so I taught 6^th grade language arts on the west side of San Antonio in San Antonio ISD. And, you know, I taught students from all different backgrounds, with all different beliefs.

 

And so when this bill was brought forward to the Public Education Committee, I found it offensive as an educator that we would impose one religious tradition onto all of our students, including students that don’t belong to that particular tradition. And then, you know, as a Christian myself, I found the bill offensive to my faith and tried to articulate that in the committee hearing that you referenced.

 

AMANDA: (audio clip) Well, and I think what kind of set that off and really was inspiring to so many people who saw it on social media was how authentically you could speak to how this offended you as a Christian. And I think sometimes these proposals are put forward as a way to promote Christianity. And it’s important for those of us who are Christians to speak out against it.

 

I lead an organization called BJC — Baptist Joint Committee for Religious Liberty — and we as Baptists have deep concerns about this legislation because of our religious freedom concerns.

 

REP. TALARICO: (audio clip) Yeah.

 

AMANDA: (audio clip) First, knowing ‑‑ we think the Ten Commandments is a really important religious document.

 

REP. TALARICO: (audio clip) Sure.

 

AMANDA: (audio clip) It’s important to us as Baptists. So we’re not debating whether the Ten Commandments are good or not. We’re debating whose job it is to teach them and to promote them. And if Texas passes this law, then they’re picking and choosing among religions, and even among versions of the Ten Commandments ‑‑ right? ‑‑ like this particular translation that they’ve chosen to put in this bill.

 

REP. TALARICO: (audio clip) Yeah. You know, this bill does a disservice to both Judaism and Christianity. As you know, there are way more than Ten Commandments in the Jewish tradition. There are 613 in the Hebrew Bible, and the irony for us Christians is that we follow a rabbi who tried to simplify those 613 commandments into two: Love God and love neighbor.

 

And this bill is not doing anything to love God or love neighbor, and in fact, it’s discriminating against our neighbors, our Hindu neighbors, our Buddhist neighbors, our Sikh neighbors, our atheist neighbors. So this bill is doing violence to both faith traditions that it claims to represent.

 

AMANDA: (audio clip) Right. And it’s also promoting bad history. You hear the proponents of this bill say over and over again that the Ten Commandments are the basis for our law and policy, when, in fact, there’s no evidence that the Ten Commandments played some special role in American law, and the U.S. Constitution doesn’t mention Christianity or Christian, and the only time it mentions religion is to ban religious tests for public office.

 

So we’re not only having the government promote one religion over others or one religious text over others, but we also have the government promoting bad history in the name of serving education. So it seems like bad policy all the way around.

 

REP. TALARICO: (audio clip) That’s right. You know, I think as a big fan of our founding fathers and as a history buff myself, I think it’s fair to say from a historical perspective that you and I, Amanda, are a lot more religious than some of our founding fathers. Not only do we have the Establishment Clause in our First Amendment to our U.S. Constitution, we also have the tradition of separation between church and state.

 

And in the committee hearing, one of our conservative colleagues pointed out that the separation of church and state, that phrase, doesn’t appear in the Bill of Rights, which is true, but it was written by a little-known historical figure named Thomas Jefferson.

 

So I think you’re absolutely right that not only should we combat this from a religious perspective, which is what I did in the hearing. We should also be very clear that this has no historical basis in American history.

 

AMANDA: (audio clip) Yeah. So I’m curious about kind of what inspired you to really devote yourself to this line of questioning at the hearing itself. I mean, you have so many different issues on your plate as a legislator, and you clearly ‑‑ it felt that you were very passionate about speaking out against this bill at the hearing. And so just wanted to hear a little bit about what inspired your advocacy.

 

REP. TALARICO: (audio clip) Well, you know, I think I’ve seen over this entire legislative session this influence from Christian nationalists and Christo-fascists on our public policy. It’s not just this bill about the Ten Commandments. It’s also the bill that would replace school counselors with chaplains.

 

As someone who’s in seminary right now, I know that chaplains do amazing work in our prisons, in our hospitals, in our armed forces. And I’m not opposed to chaplains in some tightly regulated way being involved in our schools. But I can’t in good conscience sit here and say they have the same qualifications or perform the same duties as a school counselor.

 

There’s also legislation that would hurt our LGBTQ community that’s directly inspired by this Christian nationalist movement. And we’ve seen here in Texas in the past two years the most extreme abortion ban in the country going into effect because of this Christian nationalist movement.

 

So this has not just been something this session. It’s not just something this decade. It’s really been the last 40 years of the religious right pushing our country in the wrong direction. And I as an American, as a Christian refuse to let them take over our democracy and take over our faith.

 

AMANDA: (audio clip) I’m glad that you named Christian nationalism, because we at BJC have been working in coalition with a number of others in a movement we call Christians Against Christian Nationalism, to draw attention to this poisonous ideology that tries to merge our identities as Americans and Christians in ways that threaten our democracy and our equality as Americans, regardless of religious tradition, as well as a faithful witness to Christianity.

 

And I’ve seen so often how those who are promoting Christian nationalism falsely say that to oppose it is to oppose Christianity. And so I think there’s a special responsibility from those of us who are Christians to answer that and to say, no, it is because of our Christian values; it is because of our patriotism that we are speaking out against Christian nationalism. And so I do view this particular measure of the posting of the Ten Commandments as an example of this Christian nationalist agenda as well.

 

And I’m wondering also ‑‑ I know in addition to your very busy life as a state legislator, that you are also a current seminary student. And I’m just wondering how your education in seminary has informed your advocacy as well as your practice as a legislator.

 

REP. TALARICO: (audio clip) Yeah. Well, first, I think your analysis of Christian nationalism is spot on. And, you know, sometimes I use the term “Christo-fascism.” I think they’re very similar terms. My favorite theologian, Dorothee Sölle, coined that term “Christo-fascism” in the ’70s, and it was used to describe the worship of power, social power, political power, economic power, in the name of Christ.

 

And as you said, I think it’s our obligation as Christians to speak out against that perversion of our faith, because our Christian values are absolutely aligned with small “d” democratic values. Right? I think a true multiracial, multiethnic, multireligious, multigender democracy is the closest thing that we have to the kingdom of heaven. And anything that’s going to violate that vision which Jesus articulated so well in the first century is something that should be offensive to anyone who loves democracy or anyone who loves Christianity.

 

You know, I was ‑‑ I’m the grandson of a Baptist preacher from South Texas. My faith is why I’m in politics — because I was told that loving my neighbor is the most important commandment, along with loving God. And my faith taught me that that love has to grow into justice. Right? Justice is just love out in public.

 

And that’s what led me to be a teacher, as I mentioned earlier. That’s what led me to run a nonprofit and what led me to run for office five years ago. And being here in the legislature as someone who cares about democracy, cares about human rights, cares about marginalized people, it can be really difficult. It’s really hard to work in a place like this and not lose sight of what we’re trying to accomplish or lose hope that something positive can be accomplished.

 

So going to seminary was kind of a way for me to combat that hopelessness, and I think it’s helped me hold both of those two commandments — loving thy neighbor and loving God — together, because both are necessary to sustain ourselves in these struggles that we’re a part of.

 

AMANDA: (audio clip) I think one thing that I’m finding particularly troubling when I look at what’s happening, not just in the Texas legislature but in other legislatures around the country is using this kind of misunderstanding of separation of church and state and swinging so much in the other direction, of saying that it is the job of the state, and particularly in the public school context, to promote some kind of religion, even if they are doing it in a very generic way.

 

And we’ve seen that in a spate of bills, for instance, in requiring the posting of “In God We Trust” in public school classrooms. I know that’s something that the Texas legislature did last session, and a number of others have done as well. And we’re seeing it again now with this next phase of trying to require the posting of the Ten Commandments.

 

I’m just wondering, especially since you serve on the Public Education Committee, kind of how you see this Christian nationalist agenda impacting our public schools in particular and just kind of how ‑‑ what this means for our kids, 90 percent of whom continue to be educated in public schools.

 

REP. TALARICO: (audio clip) Yeah. The thing I find interesting is that the same politicians who are pushing these Christian nationalist bills to indoctrinate our public school students into a particular faith tradition are the same politicians who loudly resist any effort to include LGBTQ students or talk about our country’s history of racism under the banner of “education, not indoctrination.” Right? That’s the slogan you hear repeatedly from Governor Abbott and right-wing politicians throughout the country: “education, not indoctrination.”

 

And I guess I’m just confused why having a rainbow in class is considered indoctrination, but not having the Ten Commandments. You know, that feels like a disconnect between what they consider indoctrination and what’s actually indoctrination. And that’s something, I think, we have to be really clear about and expose for the hypocrisy that it is.

 

AMANDA: (audio clip) And especially those of us who are Christians, I think, when they’re trying to promote a certain form of Christianity in the public schools, to understand that this doesn’t help us either. You know, this isn’t just an attack on our neighbors who are from a different faith tradition or who don’t claim a faith tradition. But it’s troubling to us as Christian parents as well, because we don’t trust the state to teach religion to our kids either.

 

REP. TALARICO: (audio clip) It’s not the state’s role. Like I said, it’s not only unconstitutional and un-American, but it’s un-Christian. And, you know, I’m hopeful that Christians around the country, not just here in Texas, but in conservative states all across America are going to have the courage to speak out against these attempts to pervert our faith and pervert our constitution.

 

AMANDA: (audio clip) Yeah. I did hear in the Senate hearing the proponents of the bill encouraging the Senate that if the legislature passes the bill, then other states will follow. So this policy is really not just about what’s happening in Texas now, but a trend that could go to other states. So thank you again for being on the front lines and trying to stop this bad policy and this bad legislation from becoming law in Texas.

 

REP. TALARICO: (audio clip) No. It’s my honor to be in this fight with y’all, and I’m so happy that we got a chance to talk about it today.

AMANDA: I want to thank Representative Talarico for his time and his advocacy, and in show notes, you can find a link to the Twitter thread that I posted that includes the video links to our conversation.

 

Segment 3: Putting this discussion into focus (starting at 27:32)

HOLLY: I think that leaves us with two things, Amanda, that I really want to talk about. One is an issue of religion that is going to be important, I think, to a very broad audience of religious and nonreligious people. And second is another kind of close focus on Texas and the way this bill is going to be evaluated legally in comparison to important law that has been made coming out of Texas in the past.

Well, first, that statement that Representative Talarico made about there being 613 commandments in the Torah just really drives home the fallacy of this Judeo-Christian unanimity about the important role of the Ten Commandments in some kind of shared spiritual tradition. And there are lots of things that our listeners could read and study to understand this issue more completely. We’ll put some helpful links in the show notes.

But what he’s pointing out is that Christians and Jews do not treat this Scripture the same, that particular Scripture even in what we do share ‑‑ and that’s what Christians often call the “Old Testament” or the “Hebrew Bible.”

There is a lot of shared history and sometimes spiritual understanding, but we don’t talk about it the same way, and it doesn’t have the same place in our understanding in these different traditions. I mean, they don’t have the same place, of course, within every part of Judaism or every part of Christianity, and certainly not as a whole. So that was a really good note, and maybe news to some Texas legislators. I don’t know.

AMANDA: I don’t know either. You know, I do think that we could have a whole podcast conversation just on the term “Judeo-Christian,” Holly, and the fact that that is often code for some of these Christian nationalist bills that are coming up, this sense of a, quote/unquote, “Judeo-Christian heritage.” But for now, I think that you’re absolutely right, that this claim that somehow this particular edited version of the Ten Commandments could stand for all of Judaism and all Christianity ‑‑

HOLLY: As “the” Ten Commandments.

AMANDA: — as “the” Ten Commandments.  It does a disservice to Christianity and its wonderful diversity but also to Judaism and its wonderful diversity.

And I am in an interfaith family. My husband is from a Reformed Jewish tradition. I have had the opportunity, the honor to be in a lot of Jewish spaces, and it has deepened my understanding of Judaism and my appreciation for Christianity, and my understanding of how they are very different traditions. Right?

HOLLY: Yeah, yeah.

AMANDA: And so to try to merge them in some way and then to stamp it with a government seal of approval of some kind of religion that can unite us all is really deeply offensive to all involved, not just to Jews, not just to Christians, but to people from other faith traditions and to those who don’t claim religion at all.

HOLLY: Right. We often note just kind of simply that there are two versions that we think of — of the Ten Commandments — that in my experience in Christian churches that I would hear about, in the story of Moses and the giving of the Ten Commandments. There’s a version in the book of Exodus and one in Deuteronomy.

And then we also know from exposure to different traditions that there are what sometimes people refer to as Catholic versions and Protestant versions and different ways of interpreting certain words and numbering them. And so the idea that there ‑‑ as you said, Amanda, the idea that you can say clearly, There are ten, is in itself problematic.

And we’re not saying this, that if only they work a little bit harder, they can get a consensus Ten Commandments ‑‑

AMANDA: Right.

HOLLY: — that we all want our children to know that they shouldn’t steal and they shouldn’t kill and they should honor their parents. You know, we’re not going to agree on this, because this is part of our specific religious traditions, and they have specific ways of being taught in context. And we want to be respectful of those differences, not because we’re against the teachings but because it’s not the role of the government to do this work.

AMANDA: So there are a lot of religious problems with the government’s use of a particular version of a religious text, but there are also some ahistorical problems. You know, something that we keep hearing repeated in these debates in Texas is this statement that the Ten Commandments has a special role in the development of American and Texas law.

HOLLY: Uh‑huh, uh-huh.

AMANDA: Right? As if this is the preeminent text that inspired all of American law and all of Texan law, because Texas being Texas has to have special law apart from the United States.

HOLLY: Right.

AMANDA: And that is just simply not true. It ‑‑

HOLLY: It’s false.

AMANDA: — is false. And no one ‑‑ I don’t hear a full-throated statement that that is false history and that we are doing a disservice ‑‑ Representative Talarico did say some of this in our conversation, you know, that we’re doing a disservice not just with government-sponsored religion but also in teaching accurate history to our students.

And so I hope, if this bill continues in the Texas legislature, that we’ll hear more of those arguments or at least making the bill’s sponsors give proof. If they have some argument that the Ten Commandments had some special place in American law, that they actually be asked to show the receipts, to tell us, where is this coming from.

HOLLY: Right. And I think some of that advocacy has been in the past to avoid an Establishment Clause problem. They can’t say that this is solely religious, religiously motivated and advancing a religious purpose and effect, and so they try to bolster some kind of nonreligious basis for why they would do this, and it leads to these exaggerated claims about the Ten Commandments and what might justify them to be used in a public school setting, you know, from an educational standpoint or to be posted in any other buildings.

And it really reminds me of the earlier Ten Commandments cases back in 2004, 2005. We mentioned last week, one of the Court’s prior statements on whether the government could sponsor a Ten Commandments display came out of the state of Texas.

The case is Van Orden v. Perry, and it was a challenge to a monument on the Texas Capitol grounds, at one of these big monuments. But it was on this kind of campus in your home state, and I have visited there. I took the family to a spring break in Austin one year, and I saw that that monument is on this huge 22-acre kind of piece of land.

It kind of feels like a park or outdoor museum. From the record, I think there were like 17 different monuments, plus 21 additional historical markers. And during that litigation, there was a lot of advocacy to defend this particular monument, obviously not advocacy by BJC who was coming from a different direction.

But there was a lot of advocacy that said that the government could display Ten Commandments monuments because there was a historical reason related to our laws. But the most important thing, I believe, about what the Court held in that case is that it was acceptable; it was constitutionally upheld because of the context. And Justice Breyer made that clear in his decision, as he called it “a borderline case.”

AMANDA: Yeah. Having that Texas-specific context is helpful as we think about this bill that’s pending now. And the current governor of Texas, Greg Abbott, was then the attorney general of Texas ‑‑

HOLLY: Right.

AMANDA: — and he argued the case before the U.S. Supreme Court. At the time, George W. Bush, also a Texan, was president, and so the United States was supporting Texas in this case. And Paul Clement was the acting solicitor general, and he also argued, and there was some foreshadowing of this very issue in questioning between former Justice Ginsburg and Mr. Clement. And we’re going to play the audio from that exchange now.

JUSTICE GINSBURG: (audio clip) There’s a question I have about the government’s position. And does place matter at all? I mean, here we’re talking about the grounds surrounding a State Capitol. What about every school room, if that’s the choice of the school board? Is it the same, or do you make ‑‑ or every courtroom up to the court to decide for itself?

 

 MR. CLEMENT: (audio clip) Well, Justice Ginsburg, I certainly think location and context matters. I think in almost every Establishment Clause context, the setting and context matters a great deal. The school case, for example, as you suggest ‑‑ I mean, unless this Court is going to revisit Stone against Graham, it’s certainly true that the school context at least raises much more difficult questions.

HOLLY: Well, we certainly agree, as we’ve talked about in these two episodes, Amanda, that the school context raises very specific issues, that it’s important, that people need to be involved, and to keep government out of this religious business that tends to divide us, tends to misplace the responsibility for advancing religion, and uniting us as citizens to solve our problems together.

AMANDA: Yeah. Holly, we have been pleased to see the advocacy that came out in the House committee hearing of people standing against this legislation. And I think now we see a pretty clear picture, that a few groups are pushing this legislation, but the groundswell of grassroots people are against the legislation.

So whether that makes a difference at the end of the day in what the legislature does remains to be seen. But we are encouraged that people are raising their voices, and we encourage them to continue to do so.

HOLLY: Well, that brings us to the close of this episode of Respecting Religion. Thanks for joining us for today’s conversation. For more details on what we discussed, including links to the resources we mentioned, check out our show notes.

AMANDA: If you enjoyed today’s show, share this program with others on social media and tag us. We’re on Twitter Instagram and YouTube @BJContheHill, and you can follow me on Twitter @AmandaTylerBJC.

HOLLY: As always, you can email both of us by writing to [email protected]. We love hearing from you.

AMANDA: Thank you for supporting this program. You can visit our show notes for a link to donate to support this podcast, and for more episodes, you can see a full list of shows, including transcripts, by visiting RespectingReligion.org.

HOLLY: We encourage you to take a moment to find out more about BJC and how we’ve been working for faith freedom for all since 1936. Visit our website at BJConline.org for a look at what we do and some of our latest projects.

AMANDA: Join us on Thursdays for new conversations Respecting Religion.