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Congress Shall Make No Law
by Isaiah Z. Sterrett
18 August 2003Bill of Rights

Alabama Supreme Court Justice Roy Moore cannot use a public facility to promote and endorse religion.

In the rotunda of Alabama’s state judicial building stands a monument to the Ten Commandments, but it may not stand much longer. U.S. District Judge Myron Thompson of Montgomery recently ordered that the statue be removed.  The ruling came in spite of the Third Circuit Court of Appeals’ ruling in June that a plaque, very similar to the monument, did not constitute a true endorsement of religion because, according to Fox News Channel, “county commissioners who wanted to keep it were motivated by historic preservation.”
But the Chief Justice of the Alabama Supreme Court, Roy Moore, announced today that he has no intention of following the order of Judge Thompson.  “This I cannot and will not do,” he said in a news conference. 
Many Americans will probably applaud Chief Justice Moore, and I, too, appreciate his pluckiness.  But I believe that his argument is flawed, and that the monument should be removed. 
Several months ago, when the San Francisco-based 9th Circuit Court of Appeals decided that the phrase “under God” in the Pledge of Allegiance was unconstitutional, most levelheaded Americans knew that the court was entirely wrong.  Merely acknowledging that we are a nation based, in large part, on the belief and the study of God doesn’t violate the First Amendment—or any other part, for that matter—of the United States Constitution.  That’s abundantly clear.  The phrase doesn’t endorse Christianity or Judaism or Islam or any other specific religion; it simply recognizes that we are a nation based, at least in part, on the belief that there is something bigger and more significant than us, whether it’s morality, or an actual being.  The Ten Commandments, however, are a great deal different.
The Ten Commandments are the precepts that, according to the Old Testament, were given by Yahweh to Moses on Mt. Sinai.  According to Exodus 31:18 they were inscribed on stone tablets by God himself, and Moses is said to have destroyed the tablets in a rage over his people’s abandonment of their faith.  The Ten Commandments are profoundly religious, and by allowing them a prominent—perhaps the most prominent—place in a state building is wrong, and a violation of the First Amendment.  The Constitution prohibits Congress from “respecting an establishment of religion…,” and a tribute to the Ten Commandments is almost certainly that.
Chief Justice Moore told Fox News that Judge Thompson had “the audacity to come into our court and say we have to remove the foundation of our law, which is the Ten Commandments.”  With all due respect to Moore, that’s inaccurate.  The Constitution is the foundation of our laws.  It supersedes all other laws that we may write.  So to suggest that an intensely religious monument like the one in question is somehow more significant than our own Constitution is rather arrogant.
One of the ideas that Senate Republicans have to fight these days is that conservative jurists like Moor are unable to separate their “deeply held beliefs” from sound jurisprudence.  Liberals haven’t been able to quite grasp the idea that even religious, pro-life, conservatives can base their legal rulings not on their own ideologies, but on the Constitution.  This Ten Commandments issue in Alabama only plays into their hands.
Chief Justice Moore has a constitutionally-protected right to practice any kind of religion he wants to.  If he wants to erect tributes to the Ten Commandments all across America, he can.  But he cannot use a public facility to promote and endorse religion.  If the Supreme Court chooses to hear this case, and I think they probably should, they ought to sort this out once and for all. 
For decades, courts have been trying to determine what constitutes a violation of the Establishment Clause, and what merely acknowledges the existence of religion.  I am hopeful, though doubtful, that the Supreme Court will use this case to narrow this time-old debate.  In the meantime, Chief Justice Moore ought to get rid of the monument.

Isaiah Z. Sterrett, a resident of Aptos, California, is a Lifetime Member of the California Junior Scholarship Federation and a Sustaining Member of the Republican National Committee.

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