Matter of Law
Céleste Perrino-Walker January/February 2004
When Roy Moore ran for chief justice of Alabama, he promised voters that if he was elected he would display the Ten Commandments as his pledge to restore the moral foundation of the law. And so he did. Without letting any of his other eight justices know, Moore hired a company to sneak a 5,280-pound granite monument of the Ten Commandments into the rotunda of the Alabama Judicial Building.
Roy's Rock, as the monument has come to be called, is not Moore's first attempt to display the Ten Commandments in a public building. In the mid-1990s he burned the commandments onto rosewood tablets he'd made, and hung them up in his courtroom in Etowah County, northeast of Birmingham, where he was a circuit judge. The resulting American Civil Liberties Union (ACLU) lawsuit catapulted him into instant celebrity status across the nation as he defied a court ruling that ordered him to remove the tablets from the courtroom.
Between then and now Moore has ridden the tent revival circuit, during which he has been cheered on by admiring crowds who applaud his stand. Capitalizing on his notoriety, he proclaimed himself the "Ten Commandments judge" on billboards and TV ads during his run for the state supreme court in 2000.
That brings us to the present: an encounter that became a tooth-and-nail, knock-down-drag-out fight to keep Moore's Ten Commandments monument in the rotunda of the Alabama Judicial Building, an indisputably public place. Although a federal court ruled in November 2002 that Moore's display was unconstitutional because it violated the establishment clause of the First Amendment, a decision that was affirmed by the U.S. Eleventh Circuit Court of Appeals, Moore again quickly became the center of media attention by refusing to obey the court's order for the monument's removal. People traveled from great distances to rally around him, and his story was avidly followed across the nation. But what exactly was his cause? Moses himself couldn't have fought more tenaciously for the fate of the original Ten Commandments.
" 'This controversy has never been about the Ten Commandments,' observes Americans United [for Separation of Church and State] legal director Ayesha Khan. 'It's about maintaining a court system that treats all Americans fairly, regardless of their religious beliefs. Judges have no right to impose their personal religious beliefs on others through official action.' "1
In his own defense Moore says he is fighting for the state to acknowledge God. "I stand before the Court of the Judiciary because I've done my oath. I've kept my oath. I have acknowledged God as the moral foundation of our law,"2 Moore told his supporters. It seems rather strange for Judge Moore to lead the legal charge to acknowledge God as the moral foundation of the law while blatantly disregarding that same law. As Richard Cohen, vice president and general counsel of the Southern Poverty Law Center, has observed, you can't be a judge and defy a court. 3 Moreover, you shouldn't be a Christian judge and defy a court.
Allen Brill, an ordained Lutheran minister and member of the South Carolina Bar, who founded The Right Christians,4 wonders which Ten Commandments everyone is fussing about. "One thing I'd like to get straight before the next Judge Roy pops up is which Ten Commandments are we talking about?"5 Brill goes on to expound on the variations of the Ten Commandments espoused by different faiths. Says Brill, "The difficulty in getting even all Christians to agree on what a Ten Commandments monument should look like is reason enough to take the issue off the table."6
The Ten Commandments in question appear in Exodus 20:1-17. While Catholics, Protestants, and Jews all accept the same text, they also abbreviate and interpret them differently. This means that to accept one rendition and engrave it onto a monument inevitably gives endorsement of one tradition, or faith, over another.
Steven Lubet, professor of law at Northwestern University, put it succinctly back in 1999 when Judge Moore was still embroiled in his fight to keep the Ten Commandments on his courtroom wall. "The framers of our Constitution were deeply concerned about the perils of religious conflict. They wisely recognized that entanglement of religion and government could only lead to heightened strife, should the followers of different faiths contend with each other for official government endorsement.
"The framers agreed, therefore, that there should be 'no law respecting an establishment of religion.' Their goal was not to suppress religion, but rather to free it from the temptations of secular power. Since there can be no law respecting an establishment of religion, no group can attempt to dominate another, and no sect need fear official domination. There cannot, and should not, be any official catechism, enshrining the tenets (or commandments) of one faith community to the derogation of another.
"The framers' solution was both judicious and prescient. Even as simple an act as displaying the Ten Commandments on a courtroom wall turns out to be freighted with contentious theological significance, and therefore with the potential for exclusion, insult and distress."7
This, then, is what the "fuss" is all about. It is not, as Judge Moore would like us to believe, a question of whether or not the state can acknowledge God, but a question of promotion of religion—moreover, a particular religious tradition—by a government official in the capacity of his duty, and it violates the establishment clause of the Constitution of the United States.
Government officials functioning in the capacity of their duty do not have the luxury of publicly embracing their religious beliefs. A Christian of another faith, or a Jew, might well compare their own interpretation of the Ten Commandments with the one on the monument before deciding whether or not to applaud. But a non-Christian could perceive the monument as a threat or an insult altogether and wonder just how impartial a judge can be who places his religion out on display. Judge Moore did it because he could. He told the Los Angeles Times, "I'm the highest legal authority in the state, and I wanted it there.8
America is a land of diverse religions, and while a great many endorse a moral code, it may not be encompassed by the particular set of Ten Commandments chosen by any one judge, or president, or teacher, or postal employee of the month. Religion is not one-size-fits-all. Rev. Barry W. Lynn, executive director of Americans United for Separation of Church and State (which cosponsored the litigation against Moore) and a United Church of Christ minister, says, "Many Americans revere this moral code. However, it is not the job of government to single out one religious code and hold it up as the state's favorite. Promoting the Ten Commandments is a task for our houses of worship, not government officials."9
The issues raised by this case are still percolating. Roy's Rock isn't the only Ten Commandments monument in the nation. There are quite a number of others, and it's only a matter of time before someone questions their presence in a public place. It's only a matter of time before the Supreme Court takes the issue in hand.
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