Ken Paxton Continues to Sink Beneath the Office He Holds

Religious private schools in Texas can't be told to close by local health officials — unlike public schools in the state. Read my story here: https://t.co/N8qqePphDD

— Reese Oxner 🏠 (@reeseoxner) July 17, 2020

Actually, they can be; this AG opinion wouldn't stand up to scrutiny in a J.P. court; but it will never be challenged (unless some extremely right wing school tries to piss off an extremely courageous city or county), so it will never be treated as the tissue paper it is.

Moreover, local public health orders attempting to restrict the provision of religious instruction through religious private schools violate the United States and Texas Constitutions and the Texas Religious Freedom Restoration Act. As the Supreme Court reaffirmed last week, “[t]he First Amendment protects the right of religious institutions ‘to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.’”12 Likewise, the Texas Supreme Court acknowledges that “the government cannot set standards for religious education or training.”13

This doesn't even attempt to address the legitimate issues of public health, and the language quoted isn't even vaguely applicable to that question.  Cities are not restricting religious schools because they are religious, but because they are schools. It makes no sense to say we will close restaurants, for example, but cannot close restaurants in a shopping center owned by a church (I know of three such shopping centers in Houston alone.  Don't get me started.)  The imposition on the religious school is no greater than it is on the public school or the private school, and it is imposed for the same reason in each case.  Religious institutions are not exempt from public health concerns simply because they have some 1st Amendment protections.

Interesting thing about AG opinions:  they are legally binding only to the extent the parties agree to be bound by them.  They can be set aside by a court order in a heartbeat, so they really have next to no authority at all.

By the way, if the above is not enough bafflegab for you, here's a bit more:

“Religious education is vital to many faiths practiced in the United States.”14 For example, “[i]n the Catholic tradition, religious education is ‘intimately bound up with the whole of the Church’s life.’”15 “Similarly, Protestant churches, from the earliest settlements in this country, viewed education as a religious obligation.”16 Likewise, Judaism, Islam, the Church of Jesus Christ of Latter-day Saints, and the Seventh- day Adventist Church, among others, all have long traditions of religious education that demonstrate the “close connection that religious institutions draw between their central purpose and educating the young in the faith.”17 In fact, “[m]ost of the oldest educational institutions in this country were originally established by or affiliated with churches, and in recent years, non-denominational Christian schools have proliferated with the aim of inculcating Biblical values in their students. Many such schools expressly set themselves apart from public schools that they believe do not reflect their values.”18 These principles inform how the State must treat religious private schools, whether in normal times or times of crisis.

'Round and 'round and ends up nowhere.  Yes, education is important to many religions.  No, that does not make religious education a protected right under the 1st Amendment or the Texas Constitution or RFRA (not that they ever cite precisely how or why any of those are involved here) that means religiously affiliated schools cannot be subject to public health directives.  Besides, are they seriously going to argue that social distancing and mask wearing are not the "least restrictive means" for handling this crisis for all involved, i.e., all of us?

Why yes; yes they are:

In addition to protections afforded to religious communities by the First Amendment to the United States Constitution and article I, section 6 of the Texas Constitution,19 the Texas Religious Freedom Restoration Act (RFRA) applies to every “ordinance, rule, order, decision, practice, or other exercise of governmental authority” in Texas.20 Texas RFRA prohibits the government from “substantially burden[ing]” the free exercise of religion,21 which includes the ability of faith communities to educate their youth,22 unless it can demonstrate a compelling interest for the restriction and prove it applies in the least restrictive way.23 Even if the government may have a compelling interest in closing certain aspects of society to contain the spread of a virus, blanket government orders closing all religious private schools are not the least restrictive means of achieving that interest.

"Least restrictive means" is a term of art, usually applicable under an equal protection analysis.  When literally every other institution in the state is restricted on who it can accomodate, some are closed entirely, and schools are given the option to close for up to 8 weeks by the TEA, how applying that to private religious schools is not the "least restrictive means" makes a mockery of the concept.

Considering what two courts and the Texas Supreme Court did when the Texas GOP tried to sue the City of Houston to protect it's "constitutional rights," I almost wish the City of Houston would sue a private school to close it.  That, of course, won't happen (and it would be a waste of time and money by the city).  But this legal opinion is a farrago of ideology and nonsense.  It is peppered with footnotes and case references which serve no more substantive a purpose than poppy seeds on a hamburger bun.  A nice addition, but bringing nothing of substance.