On November 14th, 2003, Justice Roy Moore was removed from his post as Chief Justice of Alabama by a unanimous decision of the state Court of the Judiciary. The Court found that he had “willfully and publicly” flouted a court order to remove a monument from the state judicial building, placing himself in contempt of the federal court which had ordered the removal, thereby also breaking his oath of office. In the word of the Judiciary Presiding Judge William Thompson, “the chief justice placed himself above the law.”

Whether or not you believe the Ten Commandments should be displayed in a state court house, Roy Moore was clearly wrong in defying the superior court order. But let’s look at the greater issue:

The Establishment Clause of the First Amendment to the United States Constitution plainly prohibits the establishment of a national religion or the preference of one religion over another. Prior to the Civil War and the enactment of the Fourteenth Amendment, the Supreme Court generally held that the Bill of Rights did not apply to the state governments. But today, it is clear that the United States Constitution applies to (and takes precedence over) the individual states. But what does it mean to establish a religion?

To answer that question, the Constitution points to the Judiciary system as the interpreter of the law.

In 1947, during “Everson v. Board of Education“, Supreme Court Justice Hugo Black held:

The “establishment of religion” clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect “a wall of separation between church and State.”

But does displaying the Ten Commandments break the Establishment Clause?

In Lemon v. Kurtzman (1971), The Supreme Court established the “Lemon test“, which details the requirements for United States legislation concerning religion. It consists of three prongs:

1. The government’s action must have a legitimate secular purpose;
2. The government’s action must not have the primary effect of either advancing or inhibiting religion; and
3. The government’s action must not result in an “excessive entanglement” of the government and religion.

If any of these three prongs is violated, the government’s action is deemed unconstitutional under the Establishment Clause of the First Amendment to the United States Constitution. Federal U.S. District Judge Myron Thompson ruled the monument unconstitutional, as a prohibited endorsement of religion by the government, as the monument broke the first and second requirements of the Lemon Test. (He did not voice an opinion on the third.)

The legitimacy of the court ordering former Justice Roy Moore to remove the monument is clear. It was unconstitutional to publicly display the Ten Commandments in a state judiciary building. And to those proclaiming Moore was not using his position to push one religion over another, Judge Myron Thompson noted that after taking office:

[Justice Roy Moore] routinely invited clergy to lead prayer at jury organizing sessions.

And that during his removal proceedings Justice Roy Moore answered “yes” to all four of these questions:

• Was your purpose in putting the Ten Commandments monument in the Supreme Court rotunda to acknowledge GOD’s law and GOD’s sovereignty?
• Do you agree that the monument, the Ten Commandments monument, reflects the sovereignty of GOD over the affairs of men?
• And the monument is also intended to acknowledge GOD’s overruling power over the affairs of men, would that be correct?
• When you say “GOD” you mean GOD of the Holy Scripture?

These are not the words of a man who was accidentally caught in a legal battle defending a personal religious preference. This was an unabashed attempt to formally entangle judaeo-christian religious doctrine into the Alabama judicial system.

During the controversy Roy Moore argued that his right to acknowledge God was denied. It should pointed out, however, that he retained his right to acknowledge God as a private person. It was only a violation of the establishment clause to erect a religious monument on government property.

Note: The Supreme Court itself has several depictions of the Ten Commandments. However none of the depictions contain the full text of the Ten Commandments, although one does partially show commandments six through ten in Hebrew.

This entry was posted on Wednesday, November 3rd, 2004 at 11:26 pm and is filed under political, religious. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.