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Friday, December 10, 2004  

Law: Moore continues Ten Commandments campaign

Roy Moore, the former Chief Justice of the Alabama Supreme Court, is the kind of person I like to keep an eye on. He is always up to something. Moore garnered the national spotlight when he installed a huge granite statue of the Ten Commandments in the state law building. The ensuing legal battle over establishment of religion resulted in removal of Roy's Rock from the premises and removal of Roy from office. Since turning down an opportunity to run for president for the theocratic Constitution Party, Moore has been touring the country promoting his views to the faithful. This week he, a member of the Foundation for Moral Law, filed a brief in favor of installing religious symbols on government property. The case being appealed is American Civil Liberties Union of Kentucky v. McCreary County, Kentucky (2003). The issue is whether the Ten Commandments can be displayed on government property if other documents are displayed with them.

The foundation's argument is a simple one.

Two federal courts have held that Ten Commandments displays in McCreary and Pulaski County courthouses in Kentucky violate the Establishment Clause of the First Amendment.  When the Supreme Court agreed to hear the appeal, Chief Justice Moore and the Foundation decided to argue that acknowledging God through displaying the Ten Commandments does not violate the First Amendment.  

In the "friend of the court" brief (called an amicus curiae brief), Chief Justice Moore and the Foundation argued to the Supreme Court that because judges swear an oath to support the written Constitution, the Court should look at the words in the Establishment Clause of the First Amendment to determine whether the Ten Commandments displays are constitutional. The Establishment Clause says that "Congress shall make no law respecting an establishment of religion."   By putting up Ten Commandments in their courthouses, the Foundation argued, the Kentucky courthouses were simply not making a law respecting an establishment of religion.  The Foundation urged the U.S. Supreme Court to reverse the lower courts and hold that the Ten Commandments are a constitutionally permissible manner of acknowledging God in our public places.

Too simple. The brief misses much of the meaning of the Establishment Clause. But, you will not learn anything about that at the Foundation's site. No information about opposing arguments is presented there. Even the courts' decisions are excluded.

The foundation's nitpicking over the word 'law' is particularly disingenious. Gestures by government have the impact of law. If religious symbols are displayed in, say, courtrooms, that creates the impression that a state and national judicial system supports Christianity. Equally baffling is its assertion that "acknowledging God in our public places" is not what the Establishment Clause is concerned with.

According to the former judge, all law is based on a Christian God. Specifically, his interpretation of a Christian God. Therefore, gestures that support his interpretation of a Christian God are fully acceptable. They include displays of the Ten Commandments on public property. But, Moore says, that is not establishment of religion. One can't help but wonder what would be establishment of religion from his perspective. Only behavior that it is not appropriately 'Christian' perhaps?

Moore made the same argument in an appeal of his dismissal. The U.S. Supreme Court refused to hear the appeal in October.

The main purpose of the Establishment Clause is to prevent the citizenry from setting up a national religion. But, there are other purposes. The clause is meant to prevent religion from being favored over absence of religion, and, one religion over others, as well. The argument advanced by Moore and the foundation fails all three purposes. Despite their attempt at deniability, they consider Christianity America's national religion. Display of religious symbols, particularly if they are preferred to secular symbols, favors religion over absence of religion. And, obviously, Christianity is being preferred over other religions.

The Supreme Court distilled its reasoning about the Establishment Clause in Everson v. Board of Education (1947).

“The establishment of religion clause means at least this: Neither a state nor the federal government may set up a church. Neither can pass laws that aid one religion, aid all religions, or prefer one religion over another. Neither can force a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. . . . Neither a state or the federal government may, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect 'a wall of separation between church and state.'"

The Bush adminstration has also filed a brief supporting the display of the Ten Commandments in McCreary. Considering its reliance on the religious Right for its victory in November, such quid pro quos can be expected.

It can be argued that the facts distinguish McCreary from a pure display of religious symbols case. The Ten Commandments are presented with other documents after an earlier decision said a display of them alone violated the Establishment Clause. But, considering that the other documents were added to provide a framework for displaying the religious symbol, I don't find that claim persuasive.

SCOTUS is expected to rule on the case this Spring. Roy Moore is expected to continue his quest for the limelight in support of an eventual run for national office.

Reasonably related

•An overview of the Establishment Clause can be read here.

•The appellate court's decision in McCreary is available online.

•The Decatur Daily has more information about Moore's views.

7:40 PM