The case against Judge Moore

by Lisa Manzi: 

03/23/04: "ICH" -- Supreme Court officials announced on Thursday that the decision on whether or not to hear Judge Roy Moore’s appeal will not come this week. Moore is the judge who ran for his position as Chief Justice of Alabama under the promise that he would install a monument to the Ten Commandments in the rotunda of the state judiciary building. His honor claims that he had to fulfill his promise to his electorate. And he attempts to make the case that the Ten Commandments belong in his courthouse because they are the moral foundation of our legal system. Moore is still traveling the country speaking to his followers all of whom are gobbling up his rhetoric about the invalidity of the separation of church and state.

Let me start off by saying, I respect Judge Moore’s right to hold the Ten Commandments in his heart, to display them in his living room or bedroom or bathroom or all three, and to worship them in whatever church he sees fit to worship in, but other than that, he is out of bounds. Judges are supposed to be impartial, their first obligation is to the Constitution and the law, if Roy Moore wants to lead a life in service of the Ten Commandments, I suggest he seek employment where he doesn’t put on a black robe everyday, but instead dons a more priestly garb. 

Judge Moore says that if our laws do not come from God then the government can take them away. Gee, sounds scary. I would propose that indeed the Ten Commandments are the moral foundation of Roy Moore’s particular brand of religious belief, but that the foundation of our laws can be traced to the historic debates of our founding fathers and in the resulting Constitution and the Bill of Rights. The preamble of the constitution seems to indicate that the constitution comes and is protected by “We the People.” What the monument in Alabama and its surrounding controversy have revealed to me is the irony that at a time of great religious and patriotic fever in our nation, many of our citizens have little real understanding of either. If they did, Judge Moore’s justifications for his actions would not be echoed back as reverently as they are. 

Stuart F. James on the Chattanoogan.com advised people that “Judge Moore can Win.” His October 11th article urges readers to compare the Ten Commandments, the Constitution and the Declaration of Independence with this statement “the foundation of our laws is with these 10 simple rules.” I guess it is good for a brainwashing exercise, but if the author had tried it, I doubt he would have made the suggestion, for doing so reveals the they have slim to nil in common. I’m going to just address our constitution because the Declaration was a decree to King George and does outline the laws of our land but more so addresses the grievances we had with England. 

A look at them together reveals, there is nothing in the Constitution that should make us think that the government will come after you for taking the Lord’s name in vain or for having another God before you, or for not keeping the Sabbath, or for not honoring your mother and your father, or for committing adultery (though this doesn’t apply in some states), or coveting your neighbor’s goods and/or his wife. Conversely, there is nothing in the Ten Commandments that says that you can bear arms (which would be rather contradictory to what it does say about not killing) or that you can have freedom of religion and speech and the press, or that there can be no cruel and unusual punishment, and the right to a speedy and public trial, or that the government can’t search your home without a warrant and probable cause… ummm … at least that is what it says. 

Other than all of that, yeah, they are identical - the Bill of Rights covered ten amendments and the Ten Commandments both are a list of ten things, and amendments and commandments kind of rhyme a little. Is the basis for their logic on the proof that the Ten Commandments are at the very fiber of the existence of our nation? 

The Federalist Papers and the historic records left by our founders and are as crucial to understanding the Constitution as the Bible is to understanding the Ten Commandments. While the Ten Commandments literally say, “Thou shall not kill” there are clearly passages that condone war and killing. So nuance and further research is not exclusive to the full understanding of either. 

Judge Moore is an intelligent man and as such is fully aware of the first amendment; he says of it “The First Amendment says that 'Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof.' It does not take a constitutional scholar to recognize that I am not Congress, and no law has been passed.” 

I presume that his honor is aware that the judges of our land are the final check in the balance of power; they are there to enforce the laws, to deem their legal merit, not to legislate. That is not good enough for him though, instead he chose to subvert the right to religious freedom in America whilst making the point of saying he is following the letter of the law despite breaking the spirit of it. A little historical digging reveals a few ironies about the case. One reason we can’t let Judge Moore get away with the notion that since this was not a law enacted by congress, it is an acceptable breach, is because the first amendment goes on to read “or abriding the freedom of speech, or of the press or the right of the people to peaceably to assemble, and to petition the Government for a redress of grievance.” So if Judge Moore’s case were to persuade you, be ready to start having to defend those other rights from all fronts next. Proponents of the reasoning are basically making a state’s rights point, but doesn’t the tenth amendment specifically prevent them from it here? The Tenth Amendment says that the powers not delegated to the United States government by the Constitution are reserved to the states respectively. Doesn’t the first amendment clearly place our first five freedoms, of religion, of speech, of the press, of the right to peaceably assemble and petition the government with our grievances within the rule of the federal not state realm? Wouldn’t following Judge Moore’s point that he is not in direct violation of the actual wording of the first amendment clear the way for every state to wreck havoc on all of those rights? 

If that were not the case, we would soon see that one state might declare itself Mormon another Baptist, soon each sect of religious belief would be seeking out a safe haven where it held the majority and could have a local or state government that endorsed its views. Look where such events have taken the inhabitants of the middle east, the establishment of specialized countries that endorse one view over another led to the displacement of most of the minorities within the original borders and then it left India and Pakistan in a perpetual state of war. In Florida maybe the right to peaceful protest would be outlawed, what if New York declared that the only newspaper allowed was going to be “The New York Times.” After all, congress hadn’t passed a law banning freedom of the press, the state was doing it! I would suggest that all wise citizens who contemplate this path, take a look at where it will lead us, I think if we did, we’d tell his honor, we don’t want to go there. 

Second, Article Six of our Constitution requires that both state and federal members of all branches of government must recognize the constitution as the supreme law of the land and requires that they uphold it with an oath or affirmation. The text of article six reads in part: 

“This constitution, and the Laws of the United States which shall be made in Pursuance thereof and all Treaties made, or which shall be made under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every state shall be bound thereby, any Thing in the Constitution of Laws of any State to the Contrary notwithstanding. 

The Senators and Representative before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” 

Judges are bound by and owe their allegiance only to the Constitution and the law. Our founders were aware of the potential problem of judges upholding the Constitution due to the pressures they would feel from a popular majority acting in a manner that would not be inclusive of the rights of the minority. “The Federalist Papers” are the series of articles written by Alexander Hamilton, James Madison and John Jay that made the case to the American people for adopting the Constitution we use today in place of the Articles of Confederation, our first constitution. They are beautifully written and reveal the intention of our founders in many regards, Article 78 can inform us on this particular matter, sections 18 and 20 read, "It is easy to see that judges need an uncommon amount of fortitude to do their duty as faithful guardians of the Constitution after legislative invasions of it had been instigated by the majority voice of the community. … Inflexible and uniform adherence to the rights of the Constitution and of individuals, which is indispensable in the courts of justice, can certainly not be expected from judges who hold their offices by a temporary commission. Appointments made for a certain period, however regulated or by whomsoever made, would be fatal to their necessary independence in some way or other. ... If the people appointed judges, or if they were appointed by persons chosen by the people for that special purpose, there would be too great a disposition to consult popularity, to justify a reliance that nothing would be consulted but the Constitution and the laws.” 

The irony is that Judge Moore was appointed in such a fashion, he was an elected judge running on the promise to fulfill the wishes of a populist majority in his state. 

Another problem in this case, is that after the US District Court ruled that the monument had to be removed because it amounted to state endorsement of religion in violation of the constitution, he defied the court that ordered the removal of the monument. (It has since been removed despite Moore’s defiance.) For a judge to ignore the rule of a higher court seems an unforgivable gaff to me. I presume Judge Moore expects those who come before him that he sits in judgment of to obey his rulings. But, how can he undermine the rule of law when it is his actions that are in question. His defiance has placed him under suspension and he could loose his seat, his charges that he failed “to respect and comply with the law,” “failed to comply with an existing and binding court order directed at him,” “failed to observe high standards of conduct,” and that he has “failed to avoid impropriety and the appearance of impropriety in his activities.” Sounds about right to me. 

In another example of why our founders were wise to realize that Supreme Court appointees had to be life long, Judge Moore’s supporters are seeking to impeach the US district court who ruled against Judge Moore’s monument. 

Third, the 14th amendment guarantees equal protection under the law to all citizens, therefore, the religious right’s efforts to claim that since this was not a law enacted by congress it is somehow an acceptable breach of the first amendment’s guarantee of religious freedom is null and void per the 14th amendment. 

Judge Moore is touring the nation on a publicity stunt trying to tell Americans that our rights are based on God’s law and that they are given to us by God, the point he is making to the public is that if our rights come from the government and not God, then they can be taken away from us by the government. As far as I am concerned, the only one who has tried to take away my rights are the government, in the form of people like John Ashcroft and Judge Moore. I fail to see how having the Ten Commandments in an Alabama courthouse is going to stop them. According to the Constitution, it is we the people who are charged with stopping the abuse of power that may tempt the government. We elect our representatives and congress and the President, if things go terribly wrong, we can impeach the president, we can petition the government and protest it. We can make our criticisms known in print and word. It seems like the notion that the Government can take away our rights without our consent is absurd. Most recently Judge Moore, is attacking the foundation of our freedoms by his efforts to force his brand of religious doctrine on the rest of us. It is our civic duty to ensure that we are not losing the rights granted to us in the Constitution, for if we do not care about keeping them; indeed we do not deserve to have them. What stops it are citizens aware of our rights and the good judges who uphold their oath to protect the constitution from things like the problematic provisions in the Patriot Act (hopefully coming soon) and illegal actions like those taken by Judge Moore when he attempted to turn anyone who didn’t believe in his version of the ten commandments into second class citizens. Actions like Judge Moore’s and infringements on the Bill of Rights contained in the language of the Patriot Act have no place in a nation that is supposed to be a beacon of liberty and justice “for all.” 

The beauty of our system is that the rights of those in the minority have equal measure to those in the majority, Judge Moore did exactly what our founders warned against by giving in to a populist movement in spite of rights granted to those in the minority being trampled by it. Do not forget that America is not a true democracy, majority does not rule, we are a republic, and the benefit of a republic is that those in the minority are supposed to be granted the same liberty as those in the majority. The suspended chief justice makes the case that states have the right to independently breach the citizen’s rights to freedom of religion, the phrases used to justify this often include the word’s “state’s right” and “it is not freedom from religion.” Indeed a bill is in congress right now the so called “Religious Liberties Restoration Act” which seeks to take away the right of freedom of religion by granting the power to the states, and it also absurdly declares itself devoid of judicial review, so that federal judges in theory cannot claim that it is unconstitutional for public schools to force prayer on students, or for state court houses to erect monuments say to the Ten Commandments. 

It is not very pleasant that the religious right is invoking the old state’s rights argument in making its case here, this was the same rally cry that was used to justify slavery and preventing African Americans from enjoying rights granted to them even after the 13th amendment was passed. That people would use it today sends a similar message, they are making the point that it is acceptable for the states to give in the will of the majority at the expense of those in the minority. But I suggest that all citizens realize that our rights are all at stake when we allow this to occur. Right now they make the case that it is God, the same God worshipped by, Jews, Christians and Muslims, but Judge Moore has already revealed the truth, it is a crusade for Christ. A religious group whose mission is to “reclaim America for Christ” has raised almost $600,000 for his defense. And once that mission is granted ground, it will not stop until the politicians in charge are deciding which is the state sanctioned branch of Christianity we are all going to live by. 

How quickly we forget that many of the first European Americans arrived on our shores in efforts to avoid preciously that kind of religious tyranny. Our government was established with the mission that those who live here inhabit a land where we were free to embrace our own ideas about religion without requiring the King’s approval. Government can dictate that we obey its laws, but it has no jurisdiction over our own hearts and minds, if we yield them to it, we can no longer call ourselves free. 

This brings me to my final question, why isn’t it good enough to have personal religious freedom? There are those in America that seem bent on forcing others to pray to their God in schools and to acknowledge him in other aspects of public life. Shouldn’t they be content to worship their God and let others worship whatever form of God they hold dear? Church attendance is down; perhaps they should be focusing more on drawing people in the doors and less on creating church like environments in places that are supposed to be secular. Wouldn’t the Ten Commandments teach your children more in your home than in a school or court? I don’t believe for a second that if they were in the minority they would like to be subject to such intrusions to the beliefs they hold in their hearts. Almost every religion refers to itself as the one true religion, so let us respect the rights of each heart and mind to believe that is so. James Madison said, “Whilst we assert for ourselves a freedom to embrace, to profess and to observe the Religion which we believe to be of divine origin, we cannot deny an equal freedom to those whose minds have not yet yielded to the evidence which has convinced us. If this freedom be abused, it is an offence against God, not against man: To God, therefore, not to man, must an account of it be rendered.” 

You have every right in America to religious freedom and to pray to God when you want, you can have the Ten Commandments in your home, in your churches and in your heart, but you cannot force your own brand of religious belief on others in a free nation. I hope that reading this will encourage you to look at our historic documents yourself to gain insight into the rights we have and the intent and wisdom our founders had in granting them to us. 

Perhaps Judge Moore and others would be better off installing the Bill of Rights and the Constitution in America’s state and federal buildings, it seems some of our elected and appointed leaders could certainly stand a refresher course in them. There would certainly be nothing unconstitutional about it at least!

Copyright: Lisa Manzi: Email <lisa_manzi@yahoo.com>