Federal judge invites comparison of Ten Commandments push with 1930s Nazism
Court rejects Texas law requiring posting of Biblical document in classrooms
Whether for quoting Elvis Presley in a ruling on trade fraud or using bad puns and double entendres in a ruling involving a Texas strip club, Judge Fred Biery1 of the U.S. District Court based in Austin, Texas, has become known for his use of colorful and creative language accentuating his written rulings. As he explained in an article he wrote recently for Law360, judicial opinions are “mind-numbing for the reader,” so he intentionally opts to “go against the grain of legal writing tradition” to keep his opinions interesting.
And he did plenty of that in his most recent decision of national importance, issuing a preliminary injunction last week to prevent some of Texas’s largest school districts from complying with a new state law requiring them to post a highly abridged version of the Ten Commandments on classroom walls. He said the Texas Legislature would have been better off if it had instead required that excerpts from Robert Fulghum’s book All I Really Need to Know I Learned in Kindergarten on classroom walls, and his 71 footnotes included references to figures such as filmmaker Cecil B. DeMille, singers Sonny and Cher, actress Greta Garbo, and satirical author Kurt Vonnegut in addition to conventional constitutional influencers such as Benjamin Franklin and Thomas Paine. And at one point he speculated that “[t]eenage boys, being the curious hormonally driven creatures they are, might ask: ‘Mrs. Walker, I know about lying and I love my parents, but how do I do adultery?’”
But what his written opinion in Nathan v. Alamo Heights Independent School District may be remembered for just as much is his suggestion that the push for placing the Ten Commandments in government-run classrooms is akin to what Adolf Hitler’s Nazis were doing during their rise to power. While he did not directly call Texas lawmakers Nazi-like, he certainly invited readers to make the connection. Just above a 1934 photo of Adolf Hitler shaking hands with clergyman Ludwig Müller, Biery wrote in his formal opinion: “One picture from the modern era speaks silently and poignantly of the danger of majoritarian government and religion joining hands:”.
Biery then used language just as pointed to warn of the dangers of the new Texas law, slated to go in effect Sept. 1, linking the Ten Commandments promotion as the equivalent of moving in the direction of government-mandated Islam. And in a move that his critics are likely to see as anti-Semitic, he then went so far as to suggest a similarity in the way Israel and Iran deal with religion:
If government-run public schools also joined hands with religion and had the power to impose religious views, questions arise: Which holy books and prayers would be preferred? The Torah? The Book of Mormon? The Catholic Bible? The New Testament? The Bible as edited by Thomas Jefferson? The Quran? Would Christians be required to face Mecca or observe Hebrew prayer? Would Jews and Muslims be obligated to stand and recite the Lord’s Prayer?
One need only look at the states of Israel and Iran to see the conflicts which arise when government and religion become closely intertwined.
Those are harsh words, and Biery ended his opinion suggesting that he was aware the opinion wouldn’t be popular in some circles:
For those who disagree with the Court’s decision and who would do so with threats, vulgarities and violence, Grace and Peace unto you. May humankind of all faiths, beliefs and non-beliefs be reconciled one to another.
Amen.
The more conventional parts of Biery’s 55-page opinion based his ruling in part on the precedent set by Stone v. Graham, the 1980 U.S. Supreme Court decision that rejected a Kentucky law requiring the posting of the Ten Commandments in that state’s classrooms; and Roake v. Brumley, a decision earlier this year by the Fifth Circuit U.S. Circuit Court of Appeals rejecting a Louisiana law similar to Texas’s. Applying those principles to concerns raised by the parents filing the lawsuit, Biery found that the parents had demonstrated that the law failed to meet the legal tests required by the free-exercise and establishment clauses of the First Amendment.
Biery also addressed the arguments made by the attorneys representing the district, who pointed to recent decisions by the U.S. Supreme Court that have expanded the role of religion in public education. Biery said that there is no historical tradition of posting the Ten Commandments in public classrooms. Biery also pointed out that the first state law allowing the Commandments to be posted in classrooms was passed in 1927 — and it was struck down by courts.
What’s next
Ken Paxton, the Texas attorney general whose office represented most of the school districts in the lawsuit, said the decision would be appealed, according to news accounts. He called the Ten Commandments the “cornerstone of our moral and legal heritage.”
Texas is one of three states that have passed laws requiring the posting of the Commandments in classrooms. The other two are Louisiana and Arkansas; federal judges in both of those states also have prevented school districts there from posting the Ten Commandments. Further appeals in both of those states are expected or under way.
Whether the fight over the Ten Commandments will ultimately end up in the Supreme Court remains unknown. Supreme Court consideration of the issue will become more likely if one of the federal appeals courts ends up overruling the precedent that the high court set in Stone v. Graham.
Biery became a district judge in 1994 and was elevated to chief judge in 2010. He was appointed by President Bill Clinton.