Judging the JudgesDerek H. Davis March/April 1998 Jury selection in Etowah County, Alabama, begins with an invocation given by a local minister invited to the courtroom by county judge Roy S. Moore, who invites only Christian clergy (who, of course, offer only Christian prayers). Inside the courtroom the judge has hung a handcarved plaque of the Ten Commandments. Judge Moore acknowledges that by conducting prayer and displaying the biblical passages, he is "promoting religion." Last year the ACLU filed suit to challenge Judge Moore's practices. The case has received considerable public attention, especially since the trial court recently issued an order directing all judges within Alabama to "cease and desist" immediately from conducting or arranging prayers in court with jurors summoned by legal process for jury duty, and to take "all reasonable steps to prevent the conduct of unconstitutional prayer in the public courts" of the state. The ruling also ordered Judge Moore to remove the Ten Commandments plaque or include it within a larger historical display. The case is now on appeal.
Judge Moore is not alone. John Devine, a state district court judge in Houston, decorates his courtroom with several types of religious art. Immediately behind Judge Devine's bench hang portraits of George Washington and Abraham Lincoln kneeling in devotion or prayer. Across the courtroom, within the jury's direct line of view, hang five framed quotations from the Old Testament that speak to the divine responsibilities of judges. Closer to the jury box is a large painting of two stone tablets containing the Ten Commandments. Other art representing aspects of American and Texas history also hang in the courtroom, but are placed in less prominent locations. Judge Devine defends his right to display the pictures as the constitutional free exercise of his religion. A recent attempt to recuse Judge Devine from a civil lawsuit pending in his court because of alleged religious prejudice failed, not because the reviewing judge upheld Judge Devine's right to display the art, but because the motion was brought prematurely, that is, no jury had been impaneled, therefore, no prejudice could have occurred. Nevertheless, after viewing Judge Devine's courtroom display, the judge presiding over the hearing declared, "I've never seen anything like this in more than 40 years as an attorney and judge." The ruling is currently on appeal.
In both cases Judges Moore and Devine claim the free exercise of religion as their defense. At first glance it may be difficult to distinguish between accepted everyday vestiges of religion that accompany our government and these courtroom situations. However, what these judges are doing in their courtrooms represents the kind of state sponsorship of religion prohibited by the Constitution and that must be deterred if the nation's commitment to religiously neutral government is to be maintained. When judges publicly practice religion in their courtrooms, their conduct translates into official governmental action having a threefold effect: it places the government's endorsement upon religion; it has a direct coercive effect on others; and it gives a strong inference that the judge's decisions and rulings are predicated on a basis other than the law of the land. Each of these effects conflict directly with the principles of liberal democracy on which America was founded.
The Issue of Government Endorsement
A popular argument advanced by supporters of Judges Moore and Devine, and other judges like them, is that their opponents are trying to remove religion and its influence from American public life. The fulcrum of this conduct, they claim, is the judicial system's overzealous commitment to liberal democracy, embodied most clearly in the Supreme Court's Establishment Clause test from Lemon v. Kurtzman (1971). In Lemon the Supreme Court fashioned a judicial test for reviewing government-sponsored religious acts in order to determine if they conflict with America's historical and constitutional commitment to maintaining a government that, out of respect to the nation's religious diversity, is not itself a religious advocate.
According to the Lemon test, government action must have a secular purpose, must not advance or inhibit religion, and must avoid excessive entanglement between government and religion. At the heart of the Lemon test is the Court's commitment to protect both the state and religion from encroachment by the other. The Court has sometimes used, in lieu of the Lemon test, an "endorsement test," which invalidates government actions that endorse or disapprove of religion. Under either test, there's little doubt that the courtroom conduct of Judges Moore and Devine runs afoul of the Establishment Clause.
From a historical perspective, the Founders considered it in the best interests both of democracy and sincere religious belief to establish a government that is neutral toward religion. This commitment forms the basis of a liberal democratic state and rejects the notion of a religious state upon which most societies historically have been founded.
Isaac Backus, friend of James Madison and Thomas Jefferson and a well-known Baptist minister, observed in his History of New England that "religion is a concern between God and the soul, with which no human authority can intermeddle." Writing in 1806 to the Reverend Samuel Miller, Thomas Jefferson declared, "I do not believe it is for the interest of religion to invite the civil magistrate to direct its exercises. . . . Fasting and prayer are religious exercises. . . . Every religious society has a right to determine for itself the times of those exercises . . . and this right can never be safer than in their own hands, where the Constitution deposited it." This historical understanding continues with the Supreme Court's interpretation of the Establishment Clause: "This Court has come to understand the Establishment Clause to mean that government may not promote or affiliate itself with any religious doctrine or organization. . . . The Establishment Clause, at the very least, prohibits government from appearing to take a position on questions of religious belief" (Allegheny v. ACLU ).
Few governmental actions more clearly violate this principle than when judges conduct prayer in the courtroom or display religious artwork for the sake of impressing a religious message on the jury and other participants in courtroom proceedings.
Nevertheless, many wrongly equate the notion of religiously neutral government with an atheistic one. But liberal democracy's commitment is neutrality toward both religion and irreligion. This neutrality proceeds from a commitment to the "first principle" of an individual's freedom to believe or disbelieve in a deity as conscience may dictate. Thus the government's power ought not to be used to coerce any individual into believing or disbelieving any particular religious doctrine, or to coerce any citizen to participate in religious activities.
Many argue that requiring government to stay out of religious matters results in a societal devaluation of religion, a forcible and unnatural extraction of religion from the "public square" into the private realms of homes and houses of worship. However popular and facially appealing, this argument lacks logical force. The religious viewpoint is free to participate and even pervade every aspect of public life in America-it must simply be brought to bear by religious believers and not by government officials' public actions. Private citizens should be free to express their religious beliefs and opinions and to impact public issues with complete candor and without fear that those beliefs run contrary to a religious opinion endorsed by their government.
The Issue of Coercion
Few persons more clearly act as a government official on behalf of the state than a judge who is accountable as a public agent to all who have business within his courtroom. Along with the power to issue the state's criminal punishments upon offenders, a judge has the power to compel citizens to serve as jurors, to require citizens to testify before the court, and to punish by contempt any person who refuses to yield to judicial authority. As long as a judge sits on the bench, he acts not as a private individual, but on behalf of government. Thus when a judge directs an invocation to be given or displays religious art, it is a religious act advanced by the state; it is not a mere personal expression of faith. The state's imprimatur inevitably is placed on the prayer and the display, and government can no longer be considered neutral in the purest sense, because its powers are being used to endorse religion.
Judge Moore and others protest that prayer in open court is not coercive. Jurors are told they do not have to participate. But it would require singular strength of purpose for a potential juror to ask publicly, in front of his neighbors and peers, to be dismissed from the room before the prayer. Judge Moore stated during litigation that one of his intentions in having courtroom prayer was to acknowledge that America's laws are founded "on a belief in God," and to seek "divine help and assistance" in his court proceedings. Any person asking to leave the courtroom to avoid the prayer would face the inference that he or she rejects such beliefs and likely would face the questioning, and possibly the ridicule, of those remaining for the prayer. On the other hand, if a nonbeliever or a person from a different religious faith chooses to remain silent and stay in the courtroom, he or she is subjected to an officially sanctioned prayer and thus to the government's endorsement of a religious belief other than his or her own. Our political system recognizes the inherent dangers in endorsement-that it "sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community" (Lynch v. Donnelly, ).
The coercive nature of courtroom prayer is underscored by the fact that jurors are present within the courtroom because they have been summoned there by the judicial system. While it is a privilege to participate in the jury process, it is also a duty that the courts compel citizens to perform. Thus when a judge-a government official-invites clergy into the courtroom to conduct a public prayer before the summoned panel members, government is endorsing religion in a clearly coercive setting.
In the case of the posting of the Ten Commandments, litigants might also feel threatened by the possibility that jurors could be swayed by the divine commands forcefully called to their attention. Daniel Shea, a Houston attorney representing, before Judge Devine, a bereaved family seeking $5 million for the wrongful death of their son, said: "A sign on the wall that says 'Thou shalt not covet thy neighbor's goods' is hardly the message we want to communicate to the jury."
The Issue of Religious Foundations for Judicial Rulings
Religious exercises in the courtroom not only lend the government's coercive powers to religion and potentially send a message of disenfranchisement to those outside the judge's religion, they also risk conveying a message of divine imprimatur upon the proceedings themselves. A judge who conducts prayer or otherwise attests to his own religious convictions through artwork in the courtroom might well influence jurors, lawyers, and litigants-particularly those of similar religious convictions-to conclude that this particular judge and his proceedings have a religious affinity not otherwise present in judicial proceedings. Sympathetic jury members may even be tempted, consciously or unconsciously, to give more weight and consideration to the judge's words and actions than otherwise should be given.
Meanwhile, another frequently proffered defense of judges' actions in promoting religion in their courtrooms has been that these judges are simply exercising their own constitutional rights to practice their personal religious beliefs freely. But asking judicial officers to follow the Constitution and uphold the separation of church and state by refraining from public religious acts during court sessions is not equivalent to requiring judges to surrender their religious beliefs upon assuming judicial office. These officials are simply asked to refrain from interjecting their religious beliefs into courtroom proceedings.
For example, one judge in North Carolina argued that his praying in court was his personal prayer. The Fourth Circuit Court of Appeals disagreed, concluding that a judge wearing a robe and speaking from the bench is "obviously engaging in official conduct" (North Carolina Civil Liberties Union Legal Fund v. Constangy, 947 F.2d 1145 [4th Cir. 1991]).
Of course, judges are not required to ignore or surrender their religious beliefs as they preside over the courtroom. However, their official status does require that they act in the courtroom according to certain principles not directly associated with their personal belief system. While other citizens have an absolute freedom to make decisions according to their religious principles, judges are required to base their judicial decisions primarily upon legal precedent and established legal principles. This is not to say that a judge's personal convictions and beliefs will not enter the judicial decision-making process at all (it would be impossible to eradicate personal belief or bias wholly), but a judge should not let religious beliefs be the primary guiding force behind decisions. As Columbia law professor Kent Greenawalt has argued: "Judges may sometimes rely on religious convictions, but should be very hesitant to do so."
Some argue that liberal democracy's requirement of rationality in public discourse implicitly and unfairly excludes religiously based decision-making. Not so. But it does require that a public policy decision, such as legislation or a judicial ruling, be religion neutral and capable of an explanation at least potentially accessible to all persons. In other words, a goal of public policy is to have rational foundations that are accepted by as broad a base of the population as possible. To do otherwise, to base public policy upon sectarian assertions of transcendental truth, is to predicate official decisions upon grounds that are unintelligible to a portion of the population. This would not only provide a tenuous basis for grounding public policy, but also would send the message to those holding excluded beliefs that they are not a part of the policy-making process-clearly a result antithetical to the basic tenets of liberal democracy.
A display of a divine law source like the Ten Commandments before jurors necessarily conflicts with the ideal that all citizens-religious believers and nonbelievers alike-are capable of contributing to democratic self-governance. The display is a subtle suggestion that only those who heed the words of the Pentateuch are fit to render the verdict required of them. The commitment to the view that all citizens are adequately equipped to render public service can be traced back through ancient philosophy (via Aristotle), medieval theology (via Thomas Aquinas), and democratic liberal political philosophy (via John Locke). This tradition affirms that natural law alone, without the aid of revealed divine law, equips every person to participate in civic discourse and to discern certain fundamental "self-evident" truths that are themselves a sufficient grounding for law. According to liberal democratic tradition, religious faith is not a prerequisite to one's understanding of society's governing principles, participation in the governing process, or effective fulfillment of public duties, such as jury service. Given these principles, there is no place within the courtroom or any other governmental forum for specific avowals of reliance upon sectarian sources of law. Thus, even though many of the framers personally may have believed in God as the primogenitor of law, our Constitution is purposefully devoid of any reference to a deity or divine source of law. To have invoked the name of God in the nation's founding document would have been to sanction disenfranchisement of those citizens whose religious beliefs countenance a different god or no god.
The placing of the Ten Commandments or other religious symbols inside a courtroom is a more subtle religious statement than prayer in the courtroom, but is equally problematic for a society committed to government neutrality regarding religion. The Supreme Court has disallowed the display of the Ten Commandments in public schools, finding in Stone v. Graham (1980) that the posting of such religious documents is of a devotional rather than instructional character. This reasoning could undoubtedly be applied equally to displays in courthouses.
Nevertheless, one lower court has attempted to craft a compromise solution grounded in a distinction between endorsement and neutral purpose. According to a federal district court in Georgia, the context of the display, including its location and physical setting, must be reviewed to see if its overall effect is to endorse religion (Harvey v. Cobb County, 811 F. Supp. 669 [N.D. Ga. 1993]). In that case, a county hung a copy of the Ten Commandments and the great commandment attributed to Jesus Christ in the alcove above a marble bench, near several courtrooms and the clerk's office. The county argued that the content of the display merely represented a recognition of a "historical, jurisprudential cornerstone of American legal significance." In spite of testimony that the Ten Commandments are one of many sectarian and nonsectarian influences on the formation of Western law and the United States Constitution, the court concluded that since no other law sources were displayed along with the biblical source, the display could not be interpreted as having anything but a religious purpose. The religious display, located high on a wall near the clerk's office and courtroom entrance, was such that no reasonable person could think that it was displayed without the support and approval of the government.
In the ACLU's litigation against Judge Moore, the trial court judge traveled to Etowah County to view the display of the Ten Commandments to see if it fell within the Harvey guidelines. He concluded that it did not. Noting that Judge Moore admitted that he displayed the religious plaque in order to "promote religion," the trial court judge ruled that Judge Moore must either add secular items so as to create a historical display into which the Ten Commandments would be incorporated, or take the plaque down.
Situations in which judges impose their religious beliefs on the occupants of their courtrooms present a dual concern-both to democratic government and to the integrity of religious belief itself. These cases should not be allowed to become a battlefield for those espousing the chimerical argument that religion in American public life is becoming endangered. People of faith should not fall prey to the deceptively appealing argument that these judges' actions amount to no more than ceremonial displays, or general deistic, civil religion-type affirmations. These arguments, in fact, devalue religion. It is a sacrilege to argue that a judge's prayer in his courtroom should be allowed because it represents a secular ceremonial activity, or that the prayer offered is so generic that it is uncontroversial to persons of religious faith-be they Christian, Jewish, Muslim, Hindu, Zoroastrian, or any other faith. Beyond the point that a prayer to a generic deity would still run afoul of nontheistic religions and atheism, this argument promotes the untenable position that a prayer innocuous enough to be "acceptable" to all religious groups should nevertheless demand intense defense by people of faith.
In the final analysis, public religious conduct by judges undermines the most basic tenets of liberal democracy. Judicial conduct translates into official state conduct, and judges inextricably entangle the state with religion when they allow prayer in the courtroom or display religious artwork or passages from sacred texts. Judge Moore's and Judge Devine's candid and truthful admissions that their conduct "promotes religion" should force America to examine its commitment to religiously neutral government, because if liberal democracy remains our ideal, then the judges' conduct and the Constitution are in fundamental conflict. Such religious acts can be tolerated only if (1) they are minimized to the point of being devoid of any religious meaning or (2) the nation rejects the bedrock principles of liberal democracy on which it was founded.
Neither alternative is acceptable, and the courts and the American people should reach the common sense conclusion that these practices must cease.
Derek H. Davis (B.A., M.A., J.D., Baylor University; Ph.D., University of Texas at Dallas) is director of the J. M. Dawson Institute of Church-State Studies, Baylor University, and editor of Journal of Church and State. Susan Kelley-Claybrook (B.A., Wheaton College; J.D., Baylor University) is a graduate student in church state studies at Baylor University.