diet coke for breakfast

Monday, August 25, 2003

Posted by RFTR
In God I Trust - OpinionJournal Featured Article

Worth reading all the way through. I hadn't really followed the arguments in this case, but as Moore sets his out, I can't see how the Chief Justice of the Alabama Supreme Court justified ruling against the monument.

Jake -- Having also not read the decision of the Alabama Supreme Court, I can't really speculate on what they said. However, I will say that I agree with the outcome. The decision to enshire religion, particularly as a monument in the courthouse or any other public area, is a decision to be made by the public and their representative the legislature.

This guy accuses the Alabama Supreme Court of being activist. Well if there is somone who is being activist in this situation it is him. He was the one who took matters into his own hands by setting up a monument that is clearly not accepted by a large portion of the public.

On a side note, isn't Attorney General Bill Pryor the guy who is being held up in the Senate for being to far right. I seem to remember them questioning his willingness to uphold the law. Now he is the one getting rid of the monument.

James -- I don't particularly care whether there is a monument to the 10 commandments in a court house in Alabama. First, I don't believe that having such a monument enshrines religion. There are monuments all over this country, on public land, with which people disagree. There are monuments to fallen Confederate soldiers. That doesn't mean that the federal government approves of the confederacy. At the same time, if the people of a state dislike a monument strongly enough, then they should be able to voice that objection through their legislature and have it removed. But, not being "accepted by a large portion of the public" does not make it wrong, or mean it should be taken down. That's political correctness gone awry. Furthermore, I would be wary of a judge's ability to divine what the public "wants". "Congress shall make no law..." How was that violated? From where did the federal judge take the authority to tell the Alabama State courts what they could and couldn't display? Our Constitution does not say that there may be no religion in Government. It says that the government can not establish an official religion, and may not prevent others from practicing their own. How was that violated here? Did they sit each person down in front of the monument and make them swear an oath to it? I don't know if a particular judge exercised judicial activism, but judicial activism in general has gotten us to a point where "separation of church and state" is not examined for what it really means Constitutionally. People hear the phrase and think that all religion must be banished from Government. If that's what people truly want, then take "In God We Trust" off the money, but let the Congress decide that, not a Judge.

Matt -- As always, its not that simple. Now I'm not a judge, but his opening thesis: "the issue in this case is: 'Can the state acknowledge God?'" doesn't seem to be quite right. The State can, and does... frequently, acknowledge God. Now the validity of this is debatable, but its generally considered acceptable practice to "call upon God's favor" when making decisions, etc. While there have been challenges to this, its generally protected as freedom of speech. Now the instances where God is "officially" enshrined in our codec are acctually rather minimal, and usually secular or otherwise non-specific to Christianity. Most often these are in the form of "oaths" and usually optional (again, a free speech thing), or preambles of state constitutions: none of which call for any specific action. The most signifcant of the remainder are "one nation under God" and "In God We Trust" both by-products of McCarthyism which are being reconsidered in the courts. So by and large the "acknowledgement of God" has well established legal and ethical boundries in Government. As for federal jurisdiction, that acctually comes from the 14th amendment's due process provision (yeah I know, its the most debatable provision in the Constitution, but that's another issue).

So now we come to the issue of the 10 comandment monument itself. Generally, most religion related works of art are acceptable on public lands only when there is something of a historic or deep cultural value to enshrining (I'm sorry James, but 2 1/2 ton monument placed in a rotunda is about as "enshrined" as you can get... I know what you meant, but still...) the artwork. The cultural value of the 10 commandments isn't at issue, but the cultural value of the monument is at issue, and its value is pretty low.

But fact that this was a courthouse presents the biggest ethical (if not legal) snag. We must be honest with ourselves, to what purpose is a brand new two and a half ton, it is a dangerous precedent. I'm as against political correctness as just about anyone, but this whole snafu was a bad idea from the start.

James -- I repeat, I don't really care whether the 10 commandment monument is at the Alabama Supreme Court House. I have a hard time getting worked up about it. If the people of Alabama don't want it, then they should voice their opinion, and if that's strong enough, it should go. But, that doesn't seem to have happened; it seems that a few people have litigated it out. I may be wrong but my understanding is that this thing has been there for several years. If people were really angered by it, they could have mounted enough political pressure to get rid of it long ago. Should it have been put there in the first place? Probably not, the Judge probably knew that he was picking an unwinable fight, but the guy WAS elevated to the Chief Justice position after having been part of a controversy of having the 10 commandments displayed in his court room as a lower court judge. It should have been obvious that he would pull a stunt like this, but he was promoted with out sufficient objections to prevent his appointment.

As for the legality. I don't think the "due process" provision has much bearing. No one is being deprived of "equal protection under the law". No one was prosecuted for being an infidel or for breaking any of the commandments. They're simply being displayed, albeit in an obnoxious and ostentacious way. In terms of the first amendment, the freedom of religion part can be broken into to sections. First, Congress did not establish a religion. For that matter, Chief Justice Moore did not establish a religion. People make a giant leap and assume that because he put up this monolith (or decalith?) that he is making Christianity part of his court rulings. Well, I hate to break it to those people, but in that our legal system borrows heavily from Judeo-Christian ethics, it's already in his rulings. Furthermore, in that he's a Christian, it's probably in his rulings. Now, if his Christianity is causing his rulings to contradict the law or go further than the law allows, there's a problem and grounds for appeal. But again, the monument has nothing to do with that. In the second section, it says that Congress may not abridge the right for someone to exercise his or her own religion. Neither Congress nor Judge Moore has done this either. Just because the monument is there doesn't mean that a Hindu must pretend not to be a Hindu in court. If the Hindu wants to pray according to his religion in court, the 10 commandment monument doesn't stop that either. The Hindu may object to the fact that the monument tells everyone who can see it to worship no other God, but there's nothing in the Constitution that says that he has a right to be comfortable. Now, that brings me back to Matt's final point. He's right, it wasn't a good idea. There's no good reason to put up the monument and offend people like my Hypothetical Hindu. But, that doesn't mean that a Federal court has the power or the right to stop him. Moore wanted a fight, he got one, and and no matter what he was going to lose big, but it should have been the people of Alabama that defeated him. The Federal court engaged in judicial activism; Judge Moore engaged in Judicial ridiculousness.

Finally, the only reason that I think this issue is at all important is it's implication in OTHER debates. The monument's going to be taken down. While I think the result's probably a positive step, I didn't like the process that achieved it. My main concern is in the school vouchers debate, which I do think is important. Although the Supreme court pretty resoundingly said that vouchers can go to religious schools, I can envision people trying to extend that debate, which I believe, for many of the reasons I listed above, is bogus.


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