Lewis Carroll's Alice is not part of the mad world she enters through the looking glass. Like Alice, I am an outsider in the wonderland of today's court system. In the "Ten Commandments Monument Case" of Alabama Chief Justice Roy S. Moore, and the subsequent opinion of the Federal Court, this world seems to be getting "curiouser and curiouser," as Alice would say.
Three attorney-plaintiffs, who were represented by the Southern Poverty Law Center, Americans United for Separation of Church and State, and the ACLU, challenged the placement of a monument in the rotunda of the Alabama State Judicial Building by Chief Justice Moore. The monument prominently features the Ten Commandments. Following the trial, Federal District Judge Myron H. Thompson entered a judgment in favor of the plaintiffs, stating that the placement of the monument violated the Establishment Clause of the First Amendment to the U.S. Constitution. Chief Justice Moore intends to appeal.
At the center of the controversy is a block of polished granite, approximately three feet square and four feet high. Words from our nation's founding documents are featured on the front side, and words from Federal statutes on the other three sides. Supporting texts from our legal history emphasize our debt to God for our laws, our liberties, and our system of justice. The Ten Commandments, which are the source of all law and to which all the quotations on the monument attest, appear at the top in two tablets. [Click here to see the monument's words in their entirety.]
The Moral Foundation of Law
The monument is a memorial to the moral foundation of law. Whether it is a religious shrine, and whether the Chief Justice has the right to place it in the Judicial Building as the lessee of the building, were among the issues at the trial, along with underlying issues as varied as free campaign speech and the duties and prerogatives of judicial office. There were many moments in the trial that seemed like Alice's topsy-turvy world, but it was Judge Thompson's opinion, in relation to the establishment-of-religion clause, that took us far into judicial wonderland.
"When I use a word," Humpty Dumpty said in a rather scornful tone, "it means just what I choose it to mean — neither more nor less."
"The question is," said Alice, "whether you can make words mean different things."
"The question is," said Humpty Dumpty, "which is to be master — that's all."1
Judge Thompson went even further than Humpty. He refused to define the word "religion" at all.
One of the least talked-about subjects related to the doctrines of God and man is that God gave man language. Words are important to God. Words distinguish us from animals. In truth, language could be said to have priority to law, because without the former we could not know, keep, or adjudge the latter. We forget that every word of every language signals a very particular concept. Violence to language is a sure sign of more serious violence to concepts. Contempt for careful definitions shows contempt for truth.
The First Amendment to the US Constitution states: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Chief Justice Moore's testimony addressed the fact that the US Supreme Court has defined the word "religion" using a number of Federal-Period authorities, most succinctly stated in James Madison's Memorial and Remonstrance (1785): "the duty which we owe to our Creator and the Manner of discharging it." But Judge Thompson said, "[B]ecause the court cannot agree with the Chief Justice's definition of religion and cannot formulate its own, it must refuse the Chief Justice's invitation to define 'religion.'" How could Judge Thompson find the Chief Justice guilty of unlawfully establishing religion if he doesn't know what religion is?
Judge Thompson also said,“[T ]he plaintiffs have not presented an alternate definition of religion, and the court lacks the expertise to formulate its own definition of religion for First Amendment purposes.” He was able to come to the conclusion that the Chief Justice has violated the First Amendment, but he could not tell us what had been unlawfully established. It is astounding that, given the over 200 years since the First Amendment was adopted,and a body of First Amendment cases spanning over a century, this judge claimed the lack of expertise or will to formulate a definition.
There are corresponding difficulties with the concept of establishment. The prohibition against the establishment of religion, that is, a state-sponsored church or a compulsion to worship, has become distorted to include any recognition of God. It is obvious that the monument does not require anyone to engage in religious observance of any sort. The essence of the plaintiffs’ claim was their sensitivities about the monument. They wished to redefine the concept of establishment to include their feelings of inclusion or exclusion, comfort or discomfort. Judge Thompson said during the trial that the issue is, “Can the state acknowledge God?” He effectively concluded that “acknowledging God" is equivalent in meaning to “establishing religion.”
A telling statement in the Court's opinion was that,“While the quotations on the monument’s sides are non-Biblical, they still speak solely to non-secular matters, that is, to the importance of religion and the sovereignty of God in our society ....” The blindness to the application of the monument’s quotations to “secular ” matters is breathtaking. What could be more “secular” than to establish the basis for civil law?
This deep-seated confusion about only acknowledging a Creator God in the institutional church or the most private of settings was one of the more stunning aspects of this trial. Four hundred years ago our forebears correctly rejected both state-mandated religion and its opposite extreme, a mystical asceticism which bore no relation to everyday life. Early colonists recognized God in civil matters. This was a great legacy to the framers of our government and is a great legacy to us today. Even so, historical revisionism abounded as the plaintiffs attempted to secularize all original intent in our civil government’s recognition of God in its language and practice. Plaintiffs' experts dismissed our forefathers’ deference to a Heavenly Father in their civic functions as political opportunism (the same charge waged against the Chief Justice).
Sir William Blackstone’s Commentaries, the universally accepted summary of the common law, were alluded to several times during the trial. Blackstone’s exposition on the “laws of nature and nature’s God ” summarized the foundation of the common law and unquestionably influenced our nation’s founders. He explained,“[A ]s man depends absolutely upon his Maker for everything, it is necessary that he should in all points conform to his Maker’s will. This will of his Maker is called the law of nature.”2 Such talk by Blackstone was called “window dressing ” by a plaintiffs’ expert. This was not what the Commentaries were really about, he said. Notably, one of the plaintiffs, an attorney, did not know who William Blackstone was.
Plaintiffs doggedly distinguished between what they called “ceremonial" (that is, acceptable) acknowledgements of the living God and “real ” (that is, unacceptable) acknowledgements of the same God. If this were merely a tactic of counsel, we might discount it. It is, in fact, the sum of this case. In America’s wonderland today, it is okay to acknowledge God if you don’t mean it, but it is not okay to acknowledge God if you do mean it. Government officials may use some God-talk, but if they’re serious, watch out.
Everyone agreed that the two tables of the law depicted on the monument signify commandments of the God of the Bible. But many well-intentioned Christians, along with non-Christians, miss their significance in civil government. This ignorance, ironically, is what Chief Justice Roy Moore is mitigating with the placement of the monument, and for which he is being pilloried.
The Oath of Office
Chief Justice Moore is sworn, by oath of office, to perform certain duties. His duties as Chief Justice include the administration of justice. Part of his duties is to ensure that subordinate courts and attorneys practicing law are reminded of and understand the nature of law and their obligations. Of the placement of the monument he said, “it represented my duty under the Constitution of the State of Alabama. ..[which ] says that I shall take affirmative action to correct and alleviate any condition or situation in the administration of justice.” Restoring the moral foundation of law, and placing this monument as a reminder of our legal heritage is certainly reasonable and consistent with his duties.
Chief Justice Moore’s oath binds him to the Constitution and the laws of the land, not to inconsistent or unlawful commands of any persons, including Federal Judges. And unless Judge Moore’s (or any) case is considered using clearly defined terms, and following the rule of law, the court is merely following the commands of a judge, which could be different under the next judge.
Much more is at issue in this case than whether this particular monument rests in this particular state judicial building. The question is also whether the Ten Commandments, and the rule of law they represent, will govern the courtrooms of the states and the nation or whether “law ” and its language will be pure judicial caprice. “The question is,” as Humpty Dumpty said, “which is to be master — that’s all.”
1. From Through the Looking-Glass and What Alice Found There by Lewis Carat (1872).
2. William Blackstone, Commentaries on the Laws of England, Vol. I [A Facsimile of the First Edition of 1765-1769 ] (Chicago:University of Chicago Press , 1979), 39-41.