According to an old saw, hard cases make bad law. The same sentiment often applies to those who beget litigation without thinking through possible adverse consequences. A case in point is Chief Justice Roy Moore of Alabama, who erected a monument to the Ten Commandments in the lobby of the state court house.
The American Civil Liberties Union (ACLU) promptly sued in federal court to have the monument removed. The ACLU appears to believe that whenever kindly references to God appear under public auspice, the Spanish Inquisition will soon come riding in to slap leg irons on nonbelievers. If you take its argument seriously, even reciting the Preamble to the Declaration of Independence, with its multiple allusions to God, would amount to an unconstitutional establishment of religion.
To reach that conclusion one must erase almost everything that is known about the Founding Fathers and the origins of the First Amendment. That’s just fine with the intellectual class, which spent most of the 20th century deconstructing the Constitution to suit modernist suppositions about religion. The Supreme Court, which ought to have known better, bought into the modern theory of the Establishment Clause beginning in 1947, and although it has not flatly declared that religion must never be insinuated into the public arena, its opinions have veered perilously close to that proposition ever since.
The latent supposition of the Court’s rulings in recent decades is that religion is entirely a private matter, from which it follows that nonbelievers’ rights are infringed whenever government “endorses” religious sentiment. That no framer of the First Amendment subscribed to such arguments is beside the point. What matters in contemporary constitutional jurisprudence is not what the framers meant but what they would have meant if they had only been as smart as, say, any randomly selected professor at Harvard Law School.
It was no surprise, therefore, when a federal trial court and the Eleventh Circuit Court of Appeals agreed with the ACLU in the Alabama case. Rather than appealing to the U.S. Supreme Court, however, Judge Moore took his case instead to the court of public opinion, asserting that the federal courts were acting lawlessly. That being so, Judge Moore implied, neither he nor the people of Alabama were bound to obey. That argument exhausted the patience of the federal district judge, whose order to remove the monument was executed by Alabama’s attorney general. Threatening civil disobedience is an ancient and often honorable response to unjust laws, but it cannot be credibly advanced by one who has taken an oath to uphold the law. Judge Moore relied upon the magisterial authority of his office to install the monument but denied analogous authority to the federal court that ordered him to remove it. He cannot have it both ways.
By making his own obstinance the center of the controversy, moreover, Judge Moore has diverted attention from serious discussion about modern misinterpretation of the First Amendment. Despite overwhelming public support for displaying the Ten Commandments in the public square, Judge Moore’s theatrics undermine substantive First Amendment arguments that deserve to be heard. When you ask the justices to reverse or substantially modify prior decisions, you cannot hope to succeed if you declare that you will honor their ruling only if it comes out a certain way. Notwithstanding the antireligious shibboleths that dominate contemporary First Amendment decisions, a good case can be made in support of government-sponsored displays of the Ten Commandments. Thanks to Judge Moore’s antics, that argument will probably not be heard in the one place that matters.
All may not be lost, however. The justices will soon decide whether to review the Ninth Circuit ruling that the phrase “under God” in the Pledge of Allegiance is an unconstitutional establishment of religion. When that case is properly briefed, as we have every reason to believe it will be, it will present essentially the same issues that Judge Moore fecklessly tried to engage with his Ten Commandments gesture. The Bush administration has urged the Court to take the case, and if it does, we will know in a matter of months whether our public institutions may any longer acknowledge God as the author of our being and our rights.