When Moses brought down the Ten Commandments, he carried them in his hands. When Alabama Chief Justice Roy Moore put the Commandments in the courthouse rotunda, he needed a 5,280-pound monument. The federal courts ordered it removed. When Moore refused, he was suspended.
Now that the uproar has subsided, it would be good to reflect on what this case was really about.
Moore had authority, as Chief Justice, to put displays in the rotunda. He installed the monument without using public funds. The other justices of the Alabama Supreme Court could have abrogated his decision but did not. When the federal courts ordered it removed, Moore chose not to ask for a stay pending his appeal to the U.S. Supreme Court. The Court denied the stay but will consider the appeal this fall.
In 1980, the Supreme Court ruled that a display of the Commandments in a public school classroom violates the First Amendment's Establishment Clause which says: "Congress shall make no law respecting an establishment of religion." The Court has ruled that the Fourteenth Amendment guarantee of "liberty" makes that Clause binding on state and local governments. Since 1980, lower courts have decided both ways on the Commandments. It depends on context. The display must be placed for a secular purpose and its primary effect must not be to advance religion. It may recognize the Commandments as historical fact, but may not endorse religion or the Commandments.
Moore erected the monument to depict "the moral foundation of our law" and "to acknowledge God's law and God's sovereignty." He had a right to bring a test case to the Supreme Court to challenge the premises of the Court's decisions. Having brought a test case, Moore should have played by the rules and obeyed the court order, especially since he did not seek a stay when he could have done so.
Possibly, Moore was not bringing a test case but simply practicing civil disobedience to protest the application of the Establishment Clause against the states. This, too, has a traditional foundation, as with Martin Luther King, war protesters and others.
Whether it was a test case or civil disobedience, Moore lost his legal basis for defiance when, after the removal order, the other justices on the Alabama Supreme Court withdrew Moore's authority, under state law, over the monument.
Apart from the theatrics, Moore rendered a service by calling attention to a constitutional revolution perpetrated by federal judges. This revolution has two aspects:
First, the Supreme Court wrongly interprets the Fourteenth Amendment to incorporate and apply against the states virtually all of the first eight amendments of the Bill of Rights, including the Establishment Clause. The protection of the Bill of Rights, as the Supreme Court held in 1833, restricted the federal government and not the states. For protection against state governments, the people relied on state constitutions and state courts. The Court today uses this Incorporation Doctrine to invent new rights and enforce them against every state and local government, as with abortion, pornography, criminal procedure, etc. The Establishment Clause was a demarcation of federal and state jurisdiction over religion rather than a protection of "liberty" such as freedom of speech. So even if the Incorporation Doctrine were legitimate, it should not include the Establishment Clause.
Second, the Court has re-invented the Establishment Clause. At the adoption of the First Amendment, Anglican or Congregational churches were established in five states. The last one was not ended until 1828. The Establishment Clause was to prevent Congress, not from recognizing God, but from interfering with those state establishments and from creating a national established church. On Sept. 22 to 24, 1789, the First Congress approved the First Amendment and called on the President to proclaim a national day of "public thanksgiving and prayer." The President did so, including a Te Deum service in an Anglican church. Would Congress have approved an amendment to forbid governmental promotion of prayer and recognition of God at the same time it requested the President to proclaim a national day of prayer? The Supreme Court has wrongly interpreted the Establishment Clause to require governmental neutrality, not only among theistic sects, but also between theism and non-theism. So "under God" can stay in the pledge of allegiance, as Justice William Brennan put it in 1963, only if those words "merely recognize the historical fact that our Nation was believed to have been founded 'under God.'" This suspension of judgment on the existence of God establishes in practice an agnostic secularism as the national religion.
The Moore case reminds us that, in this and other respects, the Supreme Court has usurped the role of a continuing constitutional convention. Neither James Madison nor the framers of the Fourteenth Amendment would have walked out of the stadium when the high school football teams gathered on the 50 yard-line for prayer.
Professor Emeritus Charles Rice is on the Law School Faculty. His column appears every other Wednesday. He can be contacted at plawecki.1@nd.edu.
The views expressed in this article are those of the author and not necessarily those of The Observer.
