Iambs And Pentameters

March/April 1997 Alabama Governor Fob James Jr. recently made national news when he threatened to call out the state National Guard in order to ensure that a copy of the Ten Commandments remains on a courtroom wall. "I will use all legal means at my disposal," the state's highest official said, "which includes the National Guard and state troopers, to prevent the removal of the Ten Commandments from Judge Moore's courtroom." The remarks - which have evoked images of former Alabama Governor George Wallace's use of the National Guard to prevent school desegregation - began when Montgomery County circuit judge Charles Price ruled in February that the Ten Commandment plaque in the courtroom is an unconstitutional attempt to promote religion. "Judge Moore has unequivocally stated," said Price, "that the plaques are not in the courtroom for a historical, judicial, or educational purpose, but rather and clearly to promote religion." Moore has appealed to the Alabama supreme court. Meanwhile Dean Young, the founder of the Alabama Christian Family Association, hopes to gather 100,000 signatures on a petition asking the Alabama supreme court to overturn Judge Price's ruling. "The Christians in 1997," he said, "aren't going to sit back like they did in 1962 when prayer was taken out of the schools. In 1997 in Alabama, we will be heard." In contrast, Judge Price (who earlier ruled that they could stay but called that decision "erroneous") said that the Ten Commandments were not imperiled by his ruling. "The Ten Commandments," he said, "may be displayed in every church, synagogue, temple, mosque, home, and storefront. They may be displayed in cars, on lawns, and in corporate boardrooms. Where this precious gift cannot and should not be displayed as an obvious religious text or to promote religion is on government property (particularly in a courtroom)." What's ironic is that Judge Moore apparently believes more strongly in keeping the Ten Commandments on a wall than in keeping the Ten Commandments themselves. After all, doesn't the fourth say something about working six days and keeping "the seventh-day" (i.e., Saturday) holy? Last we heard, the Honorable Judge Moore was in blatant violation of the law he's ready to face contempt of court charges over merely to keep them on a wall. Same could be said for the good governor, who'll send in troops over a law he doesn't even obey himself. In fact, the U.S. House of Representatives recently joined the fray, passing (295-125) a resolution (non-binding) that said Ten Commandment plaques should be permitted in government offices and court houses because they are "a declaration of fundamental principles that are the cornerstone of a fair and just society." If, however, only the congressmen who actually kept the Ten Commandments as a "code of moral conduct" voted for the resolution, it would have been overwhelmingly defeated.

Is Nothing Sacred?

In a major victory for religious freedom in the West, an Italian judge has ruled that blasphemy against the Virgin Mary is no longer a punishable crime. The judge made the ruling after a motorist, stopped during a traffic check, uttered curses against Mary and several saints. The judge said that cursing Mary and the saints is "no longer seen as a crime in Italy." For those who mourn another inroad of secularism in the West, all is not lost: though cursing the Virgin might be legal, cursing God still isn't.

"It is Proper to Take Alarm"

Anyone who has read Liberty magazine over the years knows how fervently it has supported the Religious Freedom Restoration Act (RFRA). Signed by Clinton in 1993, RFRA attempted to put some teeth back into Free Exercise protections after the U.S. Supreme Court in 1990 knocked them out with a one-two punch in the egregious Smith decision. What happened is this: for decades prior to Smith, the onus was on the government to show that any "substantial burden" it placed on the free exercise of religion was justified by the least restrictive means of furthering a compelling state interest. In other words, if a law - however incidentally and unintentionally - hampered the free exercise of religion, the government needed to prove that it was in the paramount interest of the state not to allow these religious practices to continue; if the state couldn't, the exemptions were granted. The "compelling interest test" wasn't perfect, and the results weren't always what religious freedom advocates wanted (especially in cases regarding prisons, the military, and Native Americans), but it did at least offer some judicial protection for those whose free exercise practices could put them out of the mainstream. Then came Smith, where in one fell swoop the "compelling state interest test" was all but thrown out in most cases. Instead, the Court ruled, if a law wasn't written to hinder a specific religious practice, but applied to everyone, then even if that law had the "incidental effect" of prohibiting free exercise, tough luck. If the legislature will give the exemption, fine - if not, well, that's the price we pay for living in a democracy. To remedy this free exercise disaster (which placed one of our fundamental freedoms at the mercy of the majority) RFRA - designed to "reinstate" the "compelling interest test" - was passed (ironically enough, by the most majoritarian branch of our government). The results were immediate, and often good (though RFRA did cause some problems, especially in prisons). Now, however, the constitutionality of RFRA itself is being challenged before the same Court whose ruling instigated it in the first place. Indeed, that could be part of the problem. Is the separation of powers violated by RFRA, which obviates the effects of a Supreme Court decision, supposedly the last word on constitutional matters? Though RFRA doesn't, technically, tell the Supreme Court how to interpret the First Amendment, it has created a statutory right to free exercise that goes beyond what the Court said the First Amendment required, much like what (RFRA defenders say) the Voting Rights Act did when it extended voter privileges after the High Court ruled that literacy tests weren't unconstitutional (then, too there was the Goldman case, in which Congress passed a law that allowed an Orthodox Jew to wear a yarmulke while on duty, a right that the U. S. Supreme Court said the Constitution didn't grant). Nevertheless, the legislative history of RFRA was clear: it was written to undo the effects of a Supreme Court decision, not necessarily a good precedent. Another factor in Boerne v. Flores, which was argued before the Court in February, is the Establishment Clause concern. Under Lemon, a statute violates the Establishment Clause if it, among other things, advances a religion. RFRA, clearly - by creating the possibility of exemptions for religious practices that violate the law - is advancing a religion, even though the Court has distinguished between laws that merely prevent hindrance of a practice (which RFRA does) from those that outwardly advance it (which RFRA doesn't). Yet the mere fact that Establishment Clause concerns were even raised shows what can happen when Establishment Clause concerns overshadow Free Exercise ones (even if the Establishment Clause was, arguably, written to protect Free Exercise). Though it's possible, even likely, that the Court will uphold RFRA, with perhaps some modifications - if it's declared unconstitutional, there will be a strong push for a constitutional amendment regarding religious liberty. Considering the type of "religious liberty" amendments already circulating around Congress, an amendment could easily devastate Establishment protections. In short, if Christians - or people of any faith, particularly those who don't have the electoral clout to make elected officials sensitive to their needs - have something to pray about, it's that the Supreme Court will uphold RFRA. If not, Americans could lose the entire foundation of religious liberty protections that have served the nation so well. It's that serious.