One of the top evangelical Christian attorneys in Alabama, who wrote the state’s Religious Freedom Amendment, says public schools are probably less likely to post the Ten Commandments with the passage of a new constitutional amendment saying they can.

A key passage in the amendment passed Tuesday with more than 70 percent of voters approving says that no state funds can be used to defend a school if it posts the Ten Commandments and is sued. That leaves schools especially vulnerable if they challenge current law as interpreted by the U.S. Supreme Court, said Eric Johnston, president of the Southeast Law Institute in Birmingham.

“If they do it, and they get sued, and if they lose, under federal statutes and attorney fee rules, they have to pay the legal fees for whoever challenged it,” said Johnston. “That could be $200,000 to $400,000, and they are likely to lose going up through the court system.”

That means a school wanting to challenge all the way to the U.S. Supreme Court for its right to display the Ten Commandments would need a hefty legal fund at the ready to handle the expenses of challenging the 1980 Stone v. Graham ruling by the U.S. Supreme Court that found public display of the Ten Commandments in schools to be a violation of the U.S. Constitution.

“That would be a risk, a lot of money at risk,” Johnston said. “Their lawyers will tell them, ‘Don’t do it.’”

Johnston issued an advisory before the election in which he sounded the alarm about Amendment One.

“That was not a good strategic move,” Johnston said. “Now you have a law in effect that says the state cannot defend a lawsuit. Before, the state could have defended you if you did it. It’s more of a hindrance. It was just bad strategic language.”

The full proposed amendment did not appear on ballots. Here is what it will look like when it is added into Alabama’s Constitution:

“Every person shall be at liberty to worship God according to the dictates of his or her own conscience. No person shall be compelled to attend, or, against his or her consent, to contribute to the erection or support of any place of religious worship, or to pay tithes, taxes, or other rates for the support of any minister of the gospel. Property belonging to the state may be used to display the Ten Commandments, and the right of a public school and public body to display the Ten Commandments on property owned or administrated by a public school or public body in this state is not restrained or abridged. The civil and political rights, privileges, and capacities of no person shall be diminished or enlarged on account of his or her religious belief. No public funds may be expended in defense of the constitutionality of this amendment.

"The Ten Commandments shall be displayed in a manner that complies with constitutional requirements, including, but not limited to, being intermingled with historical or educational items, or both, in a larger display within or on property owned or administrated by a public school or public body.”

Johnston said that with a more conservative leaning U.S. Supreme Court, there’s a chance such a legal case could find a sympathetic hearing.

“If a school displayed the Ten Commandments alongside the Magna Carta, the Mayflower Compact, the Declaration of Independence and other documents that influenced the foundation of law and western values, there’s a good chance it would be found constitutional,” Johnston said.

There is already such a display in the Old Supreme Court chambers in Alabama, Johnston said.

The U.S. Supreme Court has allowed such a historical display at a courthouse, but schools face a stricter test.

“The standard for a school is different than a courthouse,” Johnston said. “Students are more impressionable and look to school officials as an authority figures.”

Johnston did like the opening sentence of the amendment, “Every person shall be at liberty to worship God,” and said that language offers added protection for religious freedom.

”As a constitutional religious freedom lawyer, the first part is more important to me,” Johnston said.

But that, too, was not needed because similar language was already added to the state constitution with the Religious Freedom Amendment, ratified in 1999.

“It was unnecessary,” Johnston said. “We’ve got a religious freedom statement in the constitution.””

Although Johnston has previously written laws and amendments that have been added to the state constitution, he had no role in crafting this amendment and wasn’t consulted, he said.

“I think they made a mistake,” he said.