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The controversy over the Ten Commandments monument in the rotunda of the Alabama state Judicial Building and the media coverage of it are discouraging on a number of grounds.
It is discouraging because it is an unnecessarily polarized issue. It is discouraging because it turns numerous serious and meaningful moral, religious, legal, and philosophical issues into a publicity fight for media attention, where center stage is determined by crowd size, sign slogans, sound bytes, and emotional images of Christians fervently praying in the streets, instead of by sustained and reasonable analysis. Even news programs, such as Alabama Public Television's For the Record, that devote time to the issue do so at the shallow level of a high school debate between zealous and contentious participating opponents, rather than unbiased rational panel discussion by experts in law, moral and legal philosophy, and legal history. In short, it is discouraging because it trivializes important questions by seeking only simplistic, divisive, and extreme solutions or legal victories that ignores the legitimate points of the losing side. And it is discouraging because it shamelessly takes advantage of people's love for the Bible and devotion to God to promote a particular agenda and the pursuit of private political power.
It is also discouraging because Judge Roy Moore, on the one hand, openly and proudly uses his personal religious views as a basis underlying his judicial rulings, saying that is acceptable because, according to him, religion forms the moral basis for law and the Ten Commandments symbolizes that, but then on the other hand pretends the issue is only about whether the Ten Commandments themselves, or any mention of God or religion can be in the Alabama Judicial Building or not. He wants to use the monument he has designed and prominently placed in the courthouse to symbolize and justify his judicial interpretations, but when told that is clearly contrary to the intent of the disestablishment clause of the U.S. and Alabama constitutions, he says the monument is only a monument, which merely recognizes and acknowledges the prominent role of reverence for God in American society, and does not establish a religion, and that those who would have the monument removed are trying to expunge God and religion from public life and public view.
Unfortunately his opponents have focused on the monument as much as his followers have instead of how Judge Moore is using it. Judge Thompson fell into the same trap when he ruled Judge Moore's use of it means the monument must go. It is Judge Moore's use of the monument that must go. The monument is not the problem; the problem is what Judge Moore intends to signify and justify by his design and placement of the monument.
The real issue is not over whether the Ten Commandments can be legitimately displayed in a courthouse. Judge Myron Thompson said it can be there. It is, after all, even on the Supreme Court building of the United States. The issue is not really even whether this particular two and a half ton monument can be in the courthouse on public display. In a different context, with a different purpose, Judge Thompson probably would have allowed it to remain. The issue is not whether the Ten Commandments or the Bible in general has made a significant contribution to the history of law or to the evolution of morality. The issue is not whether this is primarily a Christian country or not or whether or not its founders were primarily Christian. The issue is not whether law has, or should have, a moral foundation, or what that might be. The issue is not whether people ought to be moral or not. The issue is not whether morality seems to be mistakenly eroding into some mistaken form of relativism and the abandonment of the concepts of desert and merit.
What is at issue is whether or not this monument, as Judge Moore has intended it to be seen, symbolizes an application of the dispensing of a brand of justice that is consistent with the American constitution, either now or as it was originally conceived and written, or with the current or previous five Alabama's state constitutions. It is not consistent with any of these.
What Judge Moore has done has been to take all the serious issues above
and wrap them up in whether this monument, as he intends it to be viewed,
is permitted to stay or not. If you are against allowing him to interpret
the law by his understanding of Christianity, leaving the monument as a
symbol of his legitimate right and authority to do that, then you are supposedly
against the Ten Commandments, the Bible, Christianity, all morality, the
Founding Fathers, American civilization, and God Himself.
While Judge Moore and his attorneys accept that the first amendment to the Constitution of the United States bars Congress from making laws that establish or prohibit the free exercise of religion, they do not see that states and judges cannot do it either. The fourteenth amendment includes "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States". Since the 14th amendment, the courts have held that the states cannot do what the federal government is prohibited from doing by the Constitution either. And it would make no sense for judges to be allowed to apply laws in a manner that legislatures are not allowed to write them. But even before the 14th amendment, Alabama constitutions have always prohibited the establishment of religion by the government. So even if it were somehow argued that the federal prohibition against the establishment of religion did not apply to state governments, the Alabama constitutions themselves have always forbidden Alabama's state government to do it.
Now one of his lawyers correctly points out that putting the Ten Commandments on display is not the same as making a law or establishing a religion, but Judge Moore repeatedly proudly says that this monument represents the moral basis of law. And he makes clear that he means that the underlying foundation of all law are Judeo-Christian principles. And since Judge Moore is a Christian, and since Christianity reject most of Jewish law, that pretty much means that Judge Moore believes all American law should be understood in terms of Christian principles, of which he is to be the interpreter. So Judge Moore's use of a Ten Commandments display is essentially to establish religion -- his form of Christianity.
He refuses to accept or to seem to see that it is fundamentally unfair for any state official to hold citizens accountable to his particular religious doctrines, and that his views of what Christianity requires are not even universally believed among practicing Christians. Essentially Judge Moore is hiding his own sense of justice behind the broad acceptance of and reverence for the Ten Commandments in Alabama society. He is making judgments based on his understanding of the Bible, but he is hiding behind the monument to claim he is only teaching history, being moral, acknowledging God (in the same way one does when taking an oath that includes "So help me God"), and is only doing God's work in the way he interprets and applies the law. His opponents are not so confident that Judge Moore is doing God's will or His work. If any of his followers were to come before Judge Moore on a matter of law, they might also not be as happy with his sense of justice as they now think they would. One of the rationales behind anti-establishment clauses is that even with the best of intentions, men often misinterpret, misrepresent, and pervert the will of God, and do great harm in His name.
Judge Moore also cannot see that freedom of religion does not mean freedom to inflict your religion on others as a function of any state office or job. Insofar as any religion requires proselytizing or behaving in ways that are not acceptable outside that religion, it will come into conflict with American law, but normally the mere prohibition of a government official from using his office to require particular religious behavior from others is not an infringement on his right to practice his religion himself. Judge Thompson is not telling Judge Moore he cannot be a Christian. He is only saying Judge Moore cannot inflict, with the force of law in judicial rulings, his own brand of Christianity on others from the bench of the Supreme Court of Alabama.
That includes not being allowed to intimidate people who come before him by his particular use of a Ten Commandments display. He is using his various displays as a tool of intimidation to remind people of how he expects them to think and behave -- not because there is any law about that behavior but because there is, according to him, a moral justification behind the law for his requiring that behavior. By trying to equate his own religious views with a moral foundation of law, Judge Moore clearly wants to sneak in through the backdoor what he cannot bring in through the front.
On the one hand, Judge Moore makes quite clear that his display of the Ten Commandments is meant to show the role of religion in law, but when people object to that, he and his followers say it is only the Ten Commandments, and to reject them is to reject God and morality. Well, as he is using them, it is not only the Ten Commandments and it is not only morality. Judge Moore uses them to represent the legitimacy of a particular, narrow Christian interpretation of the law and a Christian basis for morality -- his brand of Christianity. And American law, and all six Alabama constitutions, have made very clear, he cannot invoke his religious views from the bench to turn us all into his style of Christian.
To put it a different way, if there were a choice between keeping either
the monument of the Ten Commandments in the a courthouse or keeping Roy
Moore there as a judge -- with his understanding of morality, religion,
and law -- I would vote for keeping the monument. By itself, it is not
nearly as dangerous as he is.
But if we look at the Declaration of Independence, clearly a different rationale is given for the moral foundation of law -- it says that to secure the rights of life, liberty, the pursuit of happiness, and other inalienable rights "Governments are instituted among Men, deriving their just Powers from the Consent of the Governed, that whenever any Form of Government becomes destructive of these Ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its Foundation on such Principles, and organizing its Powers in such Form, as to them shall seem most likely to effect their Safety and Happiness." And the Declaration of Independence speaks, in its opening sentence of rights bestowed, not by the God of Israel or the God of the Bible, but by "the Laws of Nature and of Nature's God". In the 18th century, "natural religion" was considered to be distinctly different from "revealed religion". It was religion deduced by reason from observations of nature and its workings.
Further, the preamble to the Constitution of the United States simply says: "We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America."
Thus, the moral foundation given by the founding fathers themselves for the American legal system is neither the Bible nor the God of the Bible, but is the consent of the governed for laws that promote or provide for the common safety, welfare, happiness, and the blessings of liberty, and that protect our other inalienable rights.
The law in America has clearly evolved and changed over the past two centuries, and clearly there have been bad laws in our history, most notably the laws permitting slavery, denying rights to black citizens, and permitting the subjugation of women to men. Does Justice Moore want to contend that God was the sovereign over those laws, or any other bad laws the government passes?
Moreover, if Chief Justice Moore wants to teach what he considers to be the originating basis for law, then he should establish a museum, not set up a monument to what he alleges to be our original laws in the lobby of the state judicial building, which disregards the contributions of Greek law, Roman law, and the philosophers of the 17th and 18th centuries in England and Europe. The message that monument gives, because of its prominence and because of who put it there, is not simply a history lesson. It makes pretty clear, and Justice Moore has made pretty clear in his writings and speeches, that people will be judged Biblically in his court insofar as Alabama and American law can be stretched to permit. They will not be judged simply on the basis of Alabama and U.S. law. The central presence of the huge monument to the Ten Commandments, and Justice Moore's view of its place in law, are no more appropriate in a court building than would be a comparably prominent display of the original Constitution of the United States devoid of amendments, particularly the Bill of Rights, with persistent comments by a Chief Justice made consistently in public speeches and judicial opinions that America would be better off if we returned to the original laws of the land as they were given because it is the emphasis on human and civil rights that has led to the decline in moral standards.
Further, even from a strictly religious perspective, there is no mention in the Bible that the first ten commandments given to the Jews at Sinai are somehow more important than the hundreds of other laws given at the same time, most of which go unknown and unpracticed by Justice Moore and virtually every other American, even though the New Testament does not revoke but a few of them. Would Justice Moore have us follow Deuteronomy 18ff: "If a man has a stubborn and rebellious son, who will not obey the voice of his father or the voice of his mother, and, though they chastise him, will not give heed to them, then his father and his mother shall take hold of him and bring him out to the elders of his city at the gate of the place where he lives, and they shall say to the elders of his city,....'he will not obey our voice....' Then all the men of the city shall stone him to death with stones." And should this include the children of people like Andrea Yates, who ran from her as she tried to drown them? Should her children have escaped their death at her hands only to be found guilty of parental disobedience and stoned to death at the gates of their city?
The American Constitution is not found in the Bible, nor are the specifics of how it is constructed derived or copied from anything in the Bible. The fact that many laws in many states and cultures are similar or the same as some of the laws of the Bible does not show they came from the Bible or that they would not be important if the Bible did not exist.
Even before God gave the laws at Sinai, He clearly, according to the Bible itself, expected certain levels of behavior from human beings. Else there would not have been the flood or the destruction of Sodom and Gomorrah for moral transgressions that had no basis in laws of any sort. Cain would not have been punished for killing Abel and pretending to know nothing about it or not to be responsible for his brother's well-being. Moral principles precedes the written law, even in the Bible. 2400 years ago Socrates asked whether God's commands are morally right because God commands them or whether He commands them because they are right and He is teaching us. There is every reason to believe that even if God's commands are always morally right, it is not His issuing them that makes them right, but their being right that prompts Him to inform us of what we need to know. God is not the foundation of morality even if He is the teacher, the judge, and the enforcer of what morality itself demands. When you do right by another person in helping them, it may please God, just as it may please that person's friends and family, but the reason what you did is right is because it helps that person, not because it pleases those who love him. If it pleased no one else, it would still be right.
Finally, more germane to American justice instead of moral philosophy, if a person brings suit in an Alabama court over a work-related accident that happened on a Sunday, will Justice Moore rule against the plaintiff on the grounds that he or she should not have been working on the Sabbath in the first place? Judeo-Christian laws are not what we expect or deserve to be held accountable to in an Alabama courtroom. This is not Israel, and it certainly is not Israel of Biblical times. Those laws are the laws of a foreign land of millennia past.
It is bad enough that when someone enters a courtroom he or she may
face incompetent or unreasonable judges or unreasonable interpretations
of law, or even unreasonable or immoral laws themselves. But one should
be allowed at least the hope that there is not systematic irrationality
facing one from the bench. One should not have to go into a courtroom knowing
or expecting one will be held to a religious standard that was not established
by the consent of the governed and that may have little to do with the
security or happiness of the citizenry except in the mind of someone who
wants to live in a theocracy and has convoluted, specious arguments to
show America is, was, or ought to be a theocracy. America is not, and never
was intended to be, the Judeo-Christian equivalent of Iran or of Afghanistan
under the Taliban. (Return to main text.)