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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Saturday, July 17, 2004

Judge Roy Moore Writ Small?

Jacob Sullum criticizes Sen. Kerry's "value" talk here, though I'm not quite clear about his argument. For instance, yes, we as well as the president must make value judgments. One happens to have a lot more power than the other. I'm unclear how Kerry's comments are confusing on the point. There are American values, principles that guide us, that politicians can discuss. It's sometimes a tricky business and too often becomes lame holier than thou sounding rhetoric, but appropriate all the same.

Amy Sullivan
talks about "faith in politics," and her comments in an interesting Washington Post article about Kerry's use of faith in his campaign. Quite interesting, including the message that "Kerry has correctly placed the focus on works instead of rhetoric. I will always value the individual who walks the walks over someone who merely talks the talk. If you just listen to rhetoric, I said, you might think that Bush is incredibly religious and Kerry is not. But what's more important is to look at what they do." As they say, read the whole thing.


The motto ["With God All Things Are Possible"] is merely a broadly worded expression of a religious/philosophical sentiment that happens to be widely shared by the citizens of Ohio. As such, we believe, the motto fits comfortably within this country's long and deeply entrenched tradition of civic piety, or "ceremonial deism"

- ACLU of Ohio v. Capitol Square Review & Advisory Board, 243 F.3d 289, 299-300 (6th Cir. 2001).

These comments are not directly about that case, but one that quotes it in prohibiting a state judge from hanging a self-printed copy of the Ten Commandments along with the Bill of Rights in his courtroom. It is amusing though that a much clearer example of illegitimate state establishment is upheld in the process. The subset of Ohioans that share the motto's sentiment that do not share the sentiments of the Ten Commandments is relatively small. The motto is an official state "guiding principle," which is surely more entwined with the state than a judge who posts even a similar statement on his courthouse wall. Finally, various secular contexts can be imagined for the Ten Commandments, but an official acceptance of God is a lot harder to justify.

At any rate, the dissenting opinion is noteworthy in many respects for the lengths it goes to refute the majority. First, it argues that the ACLU lawyer does not having standing because a claim that "the display offended him, diminished his enjoyment of a public facility, and made him feel as though a religious creed was being forced on him" is not enough. "Davis? claim is little more than a statement that he is offended by something a government representative is doing because he disagrees with it." It is unclear how Davis' reasoning is much different than any number of similar successful lawsuits striking down government sanctioned use of religious displays on public property.

The dissent also notes "this nation's history is replete with examples of government actors expressing religious sentiments without offending the Constitution." Yes, generally in public speeches and the like, which are not the same thing as permanent displays (or daily pledges, for that matter). It also uses a ruling upholding congressional use of chaplains "[i]n light of the unambiguous and unbroken history of more than 200 years, there can be no doubt that the practice of opening legislative sessions with prayer has become part of the fabric of our society." Unfortunately, recent lawsuits and not directly germane displays in our court houses do not quite meet this test.

Not that the dissent is that respectful about Supreme Court precedent. It suggests, ignoring various precedents, that a "secular purpose" need not be the "primary" reason for a certain provision. It just must not be a "wholly" religious one. For instance, Wallace v Jeffries (1985, after the case cited) speaks of the "actual purpose." The dissent also notes: "As a historical matter, the Stone Court's oft-repeated truism that the first three or four Commandments are 'exclusively religious' is simply not true." Citations of laws against blasphemy, however, doesn't quite explain why this is true. The "so help me God" oath also doesn't quite explain away "Thou shalt have no other gods before me."*

The dissent's overkill is particularly upsetting because the majority could be refuted on the facts. I think it is reasonable, if somewhat a close question, that in context the display is illegitimate. As a general matter, the two additions could have fit in with the other materials in the court, and be combined into a legitimate secular whole. Nonetheless, as situated, the judge placed a copy of the Bill of Rights and Ten Commandments as freestanding displays that equates one with the other. This favors one particular religious faith over another in a way that reasonably seems to have the endorsement of the state, especially since it is in a court of law [as compared to his personal office]. Dispute this if you desire, but not with all the above much more tenuous argument.

Also, the display was found problematic because of the intent behind it. Intent is often a difficult thing to determine, and should not be a freestanding reason in such cases unless it is a clear-cut case. It was not used alone though, but to reinforce the overall opinion. The judge "chose the Ten Commandments because they were emblematic of moral absolutism and that he chose them to express the belief that law comes either from God or man, and to express his belief that the law of God is the 'ultimate authority.'" The dissent either ignored this, felt it was but the judge's personal belief, or shunted it aside this problematic fact as but one religious purpose that is saved by another secular one. Ultimately, the problem is that even putting a sympathetic light on things, he chose to promote philosophical debate in a clearly sectarian way.

The myriad of lawsuits over religious displays on public property sometimes have an "angels dancing on a head of a pin" quality about them. For instance, should a tiny cross found among other things be removed from a county seal? All the same, in a religious diverse society such as ours, selective government endorsement of particular faiths is troubling. We are not talking about a gigantic stone display here, but a computer printed copy, but the connection will likely be made.

This counsels us not to be as dismissive as the minority of the importance of the matter at hand. I'd also add that as a lower court judge, the dissent should be a bit less dismissive of clear precedent, and not just creatively mould it for her own purposes. I know that this can be said about various opinions across the spectrum, but it is strikingly apparent here. I guess the fact that too many Supreme Court justices use similar specious logic makes the dissent's reasoning a bit less troubling. In a matter of speaking.

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* The text of the Ten Commandments hanging in the courtroom begins as follows: "I. Thou shalt have no other gods before me. II. Thou shalt not make unto thee any graven image. Thou shalt not bow down thyself to them, nor serve them for I the LORD thy God am a jealous God. III. Thou shalt not take the name of the LORD they God in vain; for the LORD will not hold him guiltless that taketh his name in vain. IV. Remember the sabbath day, to keep it holy. Six days thou shalt labor, and do all thy work. But the seventh day is the sabbath of the LORD thy God: in it thou shalt not do any work."

Laws against blasphemy were in place to honor the first three commandments, but they had a clearly religious character. They might also have been in place to respect believers per se, which might be considered secular, if problematic on free speech grounds. As with using Sunday as a secular day of rest, however, we are stepping aside a ways from what the commandments actually say and mean. The use of "so help me God" also grows out of these commandments, putting aside the "affirm" alternative, but its value is religious -- it would be largely meaningless if someone didn't believe in God.

Overall, each one of the first three or four commandments (Catholics don't include the graven image separately, splitting the covet commandment in two) are direct pronouncements about duties to "the LORD thy God," thus are "exclusively" religious in character. The fact that secular interests might grow from them doesn't really change this fact. If "exclusive" is a tad bit too strong for you, okay, but the basic sentiment holds true. [footnote added]