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.

This application of the Federal Constitution to actions of state officials, called "incorporation," has been slowly applied by the Supreme Court to virtually every provision of the Bill of Rights during the last century. The doctrine of incorporation was controversial in its infancy. As recently as the 1980s, a federal district judge, fittingly in Alabama, wrote that the First Amendment's Establishment Clause should not be incorporated to apply to actions of a state. However, the Supreme Court quickly disposed of that argument when the case, Wallace v. Jaffree, reached that court.

Although some legal scholars continue to debate the incorporation doctrine generally or its application to the Establishment Clause specifically, there is no traction for this argument in the Supreme Court or lower federal courts. The District Court and Eleventh Circuit Court of Appeals, both bound to apply Supreme Court precedent where it is clear, rejected the Chief Justice's non-incorporation argument.

The Chief Justice's second argument is that his Ten Commandments Monument does not violate the Establishment Clause of the First Amendment. First, the facts: the monument, which was paid for and installed with private funds, is chiseled from granite and weighs over two and one half tons. The top of the monument appears as an open Bible with the Ten Commandments written out. Around the four sides of the monument are various quotes concerning the Ten Commandments, God's law or similar themes from the founding fathers and other historical figures of significance to the law. The monument sits at the back of the lobby of the Alabama Judicial Building. The monument is directly in the line of sight of one entering the front doors of the judicial building. No other monuments or other items are placed around the monument. It sits alone. Having seen the monument in person every day for a year (as a law clerk for another Alabama Supreme Court Justice), I can attest to the fact that it is imposing and impressive.

However, it is not so large that it dominates the expansive lobby of the Alabama Judicial Building. In Stone v. Graham, the Supreme Court held that a Kentucky law requiring public schools to display the Ten Commandments on their classroom walls violated the Establishment Clause. The Court applied a three part test to determine if an action violates the Establishment clause. The Court considers whether the action has (1) a secular purpose, and (2) whether its primary effect advances or inhibits religion.

In Stone, the Court held that although a statement under each copy of the Ten Commandments read, "The secular application of the Ten Commandments is clearly seen in its adoption as the fundamental legal code of Western Civilization and the Common Law of the United States," that its avowed secular purpose was insufficient. Discounting this statement as "self-serving," the Court held that the purpose of posting the Ten Commandments was clearly religious. Thus, the law requiring its posting had no secular purpose, and thus violated the Establishment Clause. The Stone decision, however, took pains to note that not all government use of the Ten Commandments would violate the Establishment Clause, distinguishing the Kentucky statute from a hypothetical use of the Ten Commandments, or the Bible generally to teach students lessons about history, civics or comparative religion.

Moreover, in subsequent decisions the Supreme Court has clarified that undeniably religious items may be displayed by the government if they are placed in a context which emphasizes their secular historical or other value, rather than as a purely religious symbol. For instance, a crèche or menorah may be displayed with other secular symbols, such as Christmas trees or presents.

Hence, the Eleventh Circuit Court of Appeals, the same Circuit Court that held that Moore's Ten Commandments monument violated the Establishment Clause, has held that the Establishment Clause is not violated by a display of the Ten Commandments with other secular historical documents.

The Chief Justice would have been on much stronger legal footing had he chosen to place a copy of other historical documents that undergird our legal system, such as the Magna Carta or the Declaration of Independence alongside the Ten Commandments monument. These items would have been consistent with his theme of acknowledging the historical roots of our legal system. Yet, for whatever reason, he chose not to do so. Perhaps he believed that these additional items would detract from the recognition of God that the Ten Commandments monument signifies.

However, given these facts, the District Court and Eleventh Circuit Court of Appeals held that the Ten Commandments Monument that Moore chose to install in the Alabama Judicial Building has no secular purpose. It is difficult to quarrel with this conclusion. In fact, it is not even clear that the Chief Justice does quarrel with this conclusion. In a recent public address, he stated, "Let's get one thing straight, this is about acknowledging God."

Thus, it appears that the Chief Justice concedes that the monument has a religious purpose. His real quarrel then is not with the courts' conclusion that the monument lacks a secular purpose, it is with the application of that test in the first place. But, again, however controversial, the principle that government actions must have a secular purpose has become an accepted part of our First Amendment jurisprudence.

The District Court and Court of Appeals were bound by Supreme Court precedent on this point, and it is unlikely that the Supreme Court will take his case to reexamine that principle.

Finally, facing a federal court order requiring him to remove the Ten Commandments Monument, the Chief Justice asserts that the federal courts lack the authority to require an elected state official to do so. However, as the Court of Appeals noted, this argument has been rejected long ago. During the years following the Brown v. Board of Education decision, southern governors made the same argument, claiming that the federal courts had no authority to order them to desegregate the schools.

In each case, the courts, including the U.S. Supreme Court disagreed, principally relying upon the supremacy clause of the Constitution. That clause makes federal law supreme over conflicting state law. The District Court and Eleventh Circuit, again bound by Supreme Court precedent, rejected the Chief Justice's argument.

Only an appeal to the U.S. Supreme Court remains. Despite the Court's recent penchant for federalism, it is extraordinarily doubtful that the Court will take this case. And unless the Supreme Court intervenes, Roy Moore's monument will soon be removed. But the removal of that monument will do nothing to reduce the importance of the Ten Commandments as the historical basis for our legal system.

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