Barry, I want to offer my congratulations to you and your family.  I’m sure your son’s wedding was, indeed, a great celebration.


I want to take a moment to discuss a topic you and I have debated from time to time – the constitutional role of displaying the Ten Commandments.   As you know, ABC News is focusing on the Ten Commandments – an issue that always seems to be in the legal spotlight thanks to you and your colleagues.  Case in point:  Ohio – where we represent Judge James DeWeese of Richland County, Ohio who has been sued repeatedly by the ACLU – this time for a poster he placed in his courtroom called “Philosophies of Law in Conflict.”


The poster is divided into two sections.  The first is titled “Moral Absolutes,” the second “Moral Relatives.”  To illustrate the meaning of these two clashing moral concepts, Judge DeWeese quotes texts which support each one: for moral absolutes, the Ten Commandments; for moral relativism, the Humanist Manifestos and other sources.


According to its flawed understanding of the Establishment Clause, the ACLU believes that the Ten Commandments are inherently suspect as a constitutional matter and can seldom, if ever, be displayed in the public square.  Even in the case of an educational display, such as Judge DeWeese’s, the ACLU believes that the Decalogue is nothing more than a religious text propounding nothing more than religious doctrine.


The ACLU is wrong.  In numerous Ten Commandments cases that we have handled, federal courts have repeatedly held that the Decalogue has played a profound historical role in the development of Western legal thought.  In the 2005 Supreme Court case, Van Orden v. Perry, Chief Justice Rehnquist observed that the Ten Commandments “have an undeniable historical meaning” and have played a role in our nation’s heritage.  Even Justice Souter, an advocate of strict church and state separation, has noted that “civil or secular law” has been influenced by the Decalogue.


To deny that the Ten Commandments have a secular and historical meaning, in addition to a religious one, is to deny reality and ignore history.


The reason Judge DeWeese displays the poster in his courtroom, a poster he designed himself, is set forth on the face of the poster.  He wishes to educate visitors to his courtroom that “there is a conflict of legal and moral philosophies raging in the United States,” and that in this conflict between “moral relativism and moral absolutism,” we are moving to a relativist understanding of morality and law.


Judge DeWeese, who has been repeatedly re-elected to this position for over eighteen years and has presided over 5,000 felony criminal cases, also states his belief that the moral order has its ultimate source in the divine order.  As Judge DeWeese writes:


“The Founders were right about the necessity of moral absolutes to the survival and prosperity of our country. I join them and the Constitution of Ohio in acknowledging Almighty God as the author of the necessary standards for restoring the moral fabric, safety and prosperity of this nation.” 


Judge DeWeese is quite correct about the Founders’ views regarding morality and religion.


In his famous Farewell Address to the newly established nation, George Washington stated that “Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports.”


In a letter to Benjamin Rush, John Adams, the second President of the United States, noted that “Religion and Virtue are the only Foundations, not only of Republicanism and of all free Government, but of social felicity under all Governments and in all Combinations of human society.”


Alexander Hamilton, a Founding Father and one of the Federalist Papers’ authors, observed, “Good and wise men, in all ages … have supposed that the deity … has constituted an eternal and immutable law which is indispensably obligatory upon all mankind, prior to any human institutions whatever.”


Indeed, as the United States Supreme Court itself has held: “We are a religious people whose institutions presuppose a Supreme Being.”


The Ohio State Constitution, which the lawsuit contends that the poster violates, in addition to the U.S. Constitution, specifically states that “Religion, morality, and knowledge” are “essential to good government.”


This suit is the latest chapter in the ACLU’s legal campaign against Judge DeWeese which now spans eight years.  Unfortunately, the U.S. Supreme Court refused to take the initial case and ultimately reverse a decision that found that Judge DeWeese’s display of a copy of the Ten Commandments, alongside a copy of the Bill of Rights, violated the Establishment Clause.  The Ten Commandments was removed and replaced with Judge DeWeese’s “Philosophies of Law in Conflict” poster, which is the focus of the current lawsuit.


The federal judge who presided over the first lawsuit against Judge DeWeese rejected a motion last year to hold him in contempt for displaying the current poster, which I reported in a post here in August 2008The judge concluded that “the Court can find no principled basis upon which to find that, or even fully consider whether, the new display is constitutionally impermissible.”


The importance of this case cannot be underestimated.  What is at stake is not just the public display and proper understanding of the Ten Commandments, but the right of public officials to recognize that our nation’s future depends on maintaining those principles on which the nation was founded.  A decision by the U.S. District Court could come at any time.


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