Why Roy Moore Lost

Excerpted with permission from The Rutherford Institute.

The Alabama Ten Commandments Monument issue may be coming to a head soon. Following a decision by the Eleventh Circuit Court of Appeals that the monument violates the Establishment Clause, Judge Myron Thompson, a federal district judge in Montgomery, Alabama, issued an order stating that if the 5,280 pound monument placed in the lobby of the Alabama Judicial Building by Chief Justice Roy Moore was not removed by the end of the day yesterday, August 20, 2003, he will begin to levy civil contempt fines of approximately $5,000 per day against the Chief Justice and the State of Alabama.

Late yesterday, the U.S. Supreme Court refused to grant the Chief Justice's request for an emergency stay of the district court's order. Alabama's Attorney General, and recent controversial Eleventh Circuit Appeals Court nominee, Bill Pryor, has indicated that he expects the monument to be removed shortly.

This case involves the official display of the Ten Commandments, standing alone, by a state official for the publicly stated purpose of acknowledging God. Such reverence by our public officials is admirable. However, court precedent weighs heavily against it and is unlikely to change. Thus, barring an improbable decision by the U.S. Supreme Court to hear his case, Moore's Ten Commandments monument will likely soon be removed from the lobby of the Alabama Judicial Building.

One possible destination is a church across the street from the judicial building that has offered to host the monument. But, is the removal of the monument the tragedy that some will consider it? As a Christian (a fellow Southern Baptist, like the Chief Justice), and an Alabamian, I do not attach the same importance to the monument that some do. The Chief Justice is undeniably correct in asserting that the Ten Commandments were a foundational block in the development of western law. But, a monument to the Ten Commandments has no more effect on our laws or our culture than do monuments to Robert E. Lee or Ulysses S. Grant.

A monument to the commandments does not "restore the moral foundation of our law." No court decision can prevent the Chief Justice, or any other judge, from following the principles of the Ten Commandments, or indeed, any other part of scripture, in judging the cases which come before him. And no monument will restore that "moral foundation" to those judges that lack that moral compass. The Chief Justice has frequently cited Biblical references in his opinions. Monuments, on the other hand, are merely symbols of that which we venerate and admire.

Even the Chief Justice's fellow Republican associate justices have begun to publicly distance themselves from Moore. Justice Tom Woodall has stated that he is "disappointed in the Chief Justice" and senior associate justice Gorman Houston released a public statement indicating that he and the other associate justices were considering steps to insure that Moore's stand on the monument does not cause the State of Alabama to pay civil contempt fines.

Given Supreme Court precedent, and the strategy that the Chief Justice chose to pursue, this result is not surprising. Chief Justice Roy Moore's legal strategy consists of two primary arguments. (1) He argues that the First Amendment does not apply to actions of state officials, and (2) he argues that the Ten Commandments monument does not violate the First Amendment. He also makes another argument, related to the first, that federal courts have no authority to order him, as an official of the State of Alabama, to remove the Ten Commandments monument.

The law is clear, albeit controversial, on each of these points. And in each case, the Chief Justice is on the losing end. The First Amendment states that "Congress shall make no law respecting the establishment of religion.." Although the First Amendment's proscriptions are aimed specifically at Congress, the Supreme Court has historically applied its proscriptions to the other branches of government and government officials. Early on, the states and state officials were not bound by the First Amendment. In fact, many states continued to have official established religions during the early part of the 19th Century. However, as a result of the Civil War, the Fourteenth Amendment was added to the U.S. Constitution. The Supreme Court has also held for over half a century that the First Amendment's provisions, once only a restriction against federal government action, now apply to actions of state and local government through the Due Process Clause of the Fourteenth Amendment.

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