By Steve Benen
To hear Alabama Supreme Court Chief Justice Roy Moore tell it, Aug. 1, 2001, will be an important day in the history of church-state separation.
"Today," said Moore, "a cry has gone out across our land for the acknowledgement of that God upon whom we are dependent as a nation, and for those simple truths that our forefathers found to be 'self evident.'" He added, "May this day mark the beginning of the restoration of the moral foundation of law to our people and a return to the knowledge of God in our land."
With those words, Moore unveiled a four-foot-tall, granite display of the Ten Commandments weighing 5,280 pounds in the rotunda of the Alabama Judicial Building in Montgomery, which is home to the state Supreme Court and state appeals courts.
In the process, Moore's action raised the ire of advocates of church-state separation, who filed a federal lawsuit against him challenging the constitutionality of the religious memorial. The suit, brought by Americans United for Separation of Church and State and the American Civil Liberties Union of Alabama on Oct. 30, sets the stage for a legal showdown between the groups and the nation's leading advocate of government-endorsed displays of the Decalogue
Said the Rev. Barry W. Lynn, executive director of Americans United, "As a Christian minister, I believe in the Ten Commandments, but I also believe in the separation of religion and government. In America, judges have an obligation to enforce the Constitution, not religious law. This monument belongs in church, not the courthouse."
Plaintiffs in the Johnson v. Hobson case are three Alabama attorneys who regularly have business in the judicial building Melinda Maddox, Robert Beckerle and Wade Johnson. Maddox, who is a Roman Catholic, and Beckerle and Johnson, who are Southern Baptists, say the monument violates constitutional requirements and sends a message of religious exclusion to the community.
The chief justice will be defended by a legal team assembled by Alabama Attorney General Bill Pryor, who announced in November that he would help oversee a "vigorous defense" of the religious display. In a statement, Pryor said he feels "strongly that the display of the Ten Commandments...does not violate the First Amendment."
Though Moore's religious display would be legally controversial with its very presence in the center of the state's judicial building, there were also contentious circumstances surrounding how it got there.
On the evening of July 31, Moore waited until court employees and his colleagues on the state's high court had left the building. Once alone, Moore joined a small team of supporters in placing the display in the lobby. Before the late-night shenanigans, Moore had never conferred with other justices about the monument and did not seek their counsel or consent before deciding to bring it to the rotunda.
Moore later argued that, as the chief justice of the state Supreme Court, he was the leaseholder, which afforded him authority over the building's contents. Further, this was his "gift," paid for with privately raised funds. Moore said he could therefore add whatever he pleased to the facility.
"I'm the highest legal authority in the state," Moore told the Los Angeles Times. "And I wanted it there."
Moore's opponents were unimpressed.
"This is a monumental violation of the U.S. Constitution," AU's Lynn told reporters after Moore's action became public. "The Ten Commandments is a religious code, and should not be promoted by the government. The Commandments have done well for thousands of years; they don't need Roy Moore's help."
Likewise, Associate Justice Douglas Johnstone, Moore's colleague on the state's high court, expressed concern.
"Courts should confine themselves to deciding their cases according to established law," Johnstone said. "I shun symbolic controversies because I think time and effort are better spent in tangible service rather than symbolic gesture. However, while I believe in God, I oppose the movement to govern in the name of God. People who govern in the name of God attribute their own personal preferences to God and therefore recognize no limits in imposing those preferences on other people."
Moore's stunt was also widely condemned by political observers from across the ideological spectrum. Among Alabama's newspapers, criticism came from every corner of the state.
The Tuscaloosa News said Moore was turning his court into a "three-ring circus." The Birmingham Post-Herald described his actions as "presumptuous and arrogant." The Mobile Register said, "What used to be quirky eccentricity has grown into an arrogance that could threaten the very civil liberties that Justice Moore professes to defend." Talladega's Daily Home concluded, "The supreme court is the people's court, not Moore's. The hallowed halls of justice should be just that justice for all, not just for those who believe as Moore does.... If it were the right thing to do, why did he use the cover of night to do it?"
Even syndicated columnist Paul Greenberg, who rarely finds himself on the same side as civil libertarians, published an essay in the ultra-conservative Washington Times questioning Moore's move.
"An empty public square is a useful thing," Greenberg wrote. "It allows us to stay apart together. Start filling it up with granite monuments and counter-monuments, and our attentions are diverted, our loyalties split. Our public spaces become like a Roman pantheon full of competing gods. And we turn on one another, sneaking our favorite symbol into the forum under cover of night and daring them to remove it. What ought to elevate and unite us divides us and reduces faith to a rhetorical contest."
At its core, Moore's crusade is about promotion of his faith. Far from hiding his motivations, Moore freely admits that the goal of his efforts is to advance a larger religious agenda.
"[M]any judges and government officials deny any higher law," Moore said during his press conference, "and forbid the teaching to our children that they are created in the image of an Almighty God, while they purport that it is government, and not God, who gave us our rights." Moore went on to say that the purpose of the monument is to remind people "that in order to establish justice we must invoke the favor and guidance of Almighty God."
It was only a matter of time before Moore took a step toward a significant gesture of government-supported religion.
Moore became a celebrity in right-wing circles in 1997 when he faced a legal challenge for opening jury sessions with clergy-led prayer and posting a hand-carved plaque of the Ten Commandments in his Etowah County courtroom. His popularity grew after he insisted that he would not back down under any circumstances.
That commitment was put to the test when a state court ruled that his display was unconstitutional and ordered Moore to remove the plaque. Moore refused, and received assistance from then-Gov. Fob James (R), who threatened to call National Guard troops to protect Moore's display. Ultimately, the case against Moore was thrown out on appeal by the state Supreme Court in January 1998 on a procedural technicality, and the justices did not address the legality of the religious practices.
Moore, who at the time was a state circuit court judge, took advantage of the subsequent political support from Religious Right groups and became a nationally sought critic of church-state separation, a constitutional principle which he routinely describes as a "fable." In a short period of time, his ties grew to several far-right groups and leaders, including some on the farthest fringes of American politics.
For example, during his initial legal fight in 1997, Moore appeared on a short-wave radio program called "Scriptures for America," hosted by the Rev. Pete Peters. The appearance was shocking because Peters is an ardent anti-Semite and follower of the white supremacist Christian Identity Church, which preaches against Jews, African Americans and other minorities. When asked why a sitting judge would appear on such a show, Moore claimed to be unaware of Peters' views.
Moore also developed connections with more traditional Religious Right groups, making appearances on programs such as TV preacher Pat Robertson's "700 Club." Among the most enthusiastic of Moore's new allies was TV preacher D. James Kennedy of the Center for Reclaiming America, a man who considers the principle of church-state separation "diabolical," a "false doctrine" and "a lie" propagated by Thomas Jefferson.
With assistance from Religious Right cohorts, Moore parlayed his notoriety into a successful campaign for chief justice of the state Supreme Court in November 2000, defeating Alabama Appeals Court Judge Sharon Yates, 54 to 46 percent. In his Election Day victory speech, Moore declared, "I believe God is looking down on these efforts of those people who wish to acknowledge his sovereignty over the affairs of men.''
Moore promised supporters during his campaign that, if elected, he would be bringing a copy of the Ten Commandments to the state judicial building, where the Decalogue would be placed in a "public" location.
After taking office, Moore initially balked at the idea of bringing the religious text into the main courtroom of the state Supreme Court. Religious Right activists, many of whom had contributed generously to Moore's campaign, demanded results.
In response, Moore displayed his hand-carved plaque in his outer office three weeks after being sworn in. Opponents of church-state separation, however, continued to complain. Since the waiting room area was not included on public tours of the building, and could not be seen by people in the clerk's office, they argued that the gesture was not bold enough.
Moore, who publicly said that he was undaunted by the complaints, nevertheless began work on his larger granite monument after allies voiced disapproval for his modest plaque. In a process that lasted nearly seven months, Moore worked with his attorney, Stephen Melchior, and artist Richard Hahnemann to complete the project. According to Moore, Hahnemann completed the monument "based upon my specifications."
If Moore's goal was to help quell the disapproval of his ideological allies, he was largely successful. At the very least, no one is arguing that the monument, which is similar in size and shape to a dishwashing machine, isn't audacious enough.
However, there remains lingering resentment from some who feel the statue was inspired by political strategy, not piety.
Dean Young, who served as a fund-raiser and aggressive spokesman for Moore during his original legal battle, suggested the display is part of a strategy to help the chief justice run for governor or senator.
"I believe this is a step in the right direction, but Judge Moore is going to have difficulty explaining why he had had a change of heart," said Young, who is also head of the Christian Family Association. "People don't trust him like they used to."
Moore has heard those concerns and won't rule out seeking higher office. He says, however, that he plans to serve his full six-year term on the court.
"This is not about politics," Moore told National Public Radio in August. "It's about God."
Though his political ambitions may be unclear, the fact that the monument is "about God" is obvious. While the biblical Commandments are the centerpiece, the granite object features more than just the Protestant version of the Decalogue. On its sides, quotes etched into the stone highlight religiosity in American history. For example, Moore's display includes the "In God We Trust" motto adopted in 1956, and the last 11 words of the Pledge of Allegiance, "One nation, under God, indivisible, with liberty and justice for all," amended to include the religious reference in 1954.
Ironically, Moore also included quotes from Thomas Jefferson and James Madison, two Founding Fathers who championed the cause of church-state separation.
Leaving the monument isolated in the judiciary building's rotunda was a priority for Moore. While some supporters of Ten Commandments monuments in other states had erected displays with the religious text standing alongside other historical documents, Moore promised supporters during his campaign for the state Supreme Court than his monument would protect the sacred nature of the Decalogue and would not be part of a larger display.
That campaign promise has been tested repeatedly since Moore's monument was unveiled. First, some reporters questioned whether his earlier guarantee was inconsistent with the inclusion of historical quotes on his monument.
"This isn't surrounding the plaque with history, historical documents," Moore said at the monument's unveiling. "All this history supports the acknowledgement of God."
Then, just days after Moore's press conference, Alabama State Rep. Alvin Holmes (D-Montgomery) suggested that the judicial building's rotunda would look even better if it also had a monument to honor Dr. Martin Luther King, Jr.
Through press accounts, Moore said he had no intention of allowing Holmes to add a King tribute to the building's rotunda. Holmes decided to proceed with his plan anyway.
On Aug. 28, on the 38th anniversary of King's "I Have A Dream" speech, Holmes joined 50 supporters in attempting to enter the judicial building's lobby to place a display next to Moore's Commandments monument. Before they could get into the building, security officers locked the doors to the rotunda.
After singing "We Shall Overcome" for about a half-hour, the Holmes-led group left the premises, promising to return. "We are going to keep coming back until we get this monument," Holmes told The New York Times.
Moore tried to appease Holmes by erecting a plaque in the rotunda with quotations from King and abolitionist Frederick Douglas. The catch was that Moore would personally select the quotes and that the display would reflect remarks from King and Douglas that recognize God, so as to be consistent with Moore's religious agenda. Holmes was unsatisfied and indicated legal action may be forthcoming.
The fight over rotunda decorating was exacerbated in early September when a local atheist group asked that a seven-foot sculpture of an atom be placed alongside the Commandments. The sculptor, Bill Teague, a 76-year-old retired merchant marine, said the addition would make the judicial building more welcoming to all people, including non-believers.
"I don't appreciate [Moore] turning that courthouse into a museum or cathedral," Teague told the Associated Press. "It's a courthouse."
Moore has refused the atheist group's request, telling Teague on Sept. 5 that the atom display is not "in conformity with the purpose or theme of the foundation of American law and government."
The state director of American Atheists has not ruled out adding to Moore's legal troubles by filing a suit of their own.
Perhaps aware of the difficulties of defending his monument in court, Moore abandoned his earlier pledge about isolating the Commandments and added a three-foot bronze plaque of the Bill of Rights to the rotunda in November. Without addressing his earlier promises, Moore said the secular text is "very classy and dignified and perfectly fits the theme of the rotunda."
With or without displays honoring civil rights leaders, atoms or constitutional amendments, the religiosity of Moore's monument makes it vulnerable to a legal challenge.
In fact, Moore's legal defense is likely to be difficult in light of legal precedent on this issue. In 1980, the U.S. Supreme Court ruled in Stone v. Graham that a Kentucky law requiring the posting of the Ten Commandments in all public schools was unconstitutional because it amounted to government promotion of religion.
Perhaps even more directly relevant to the Alabama controversy, the U.S. 11th Circuit Court of Appeals ruled in 1994 that a Ten Commandments display in a courthouse in Cobb County, Ga., also ran afoul of the First Amendment. Since Alabama is included in the 11th Circuit, the legal precedent would be applicable to a challenge to Moore's court monument.
In the face of political and legal difficulties, Moore and his allies are making an effort to rally support for his cause. Kennedy's Coral Ridge Ministries, for example, has sent multiple fundraising letters, urging supporters to contribute to Moore's Commandments campaign.
"Justice Moore is determined to restore the moral foundation of law in his state and around the country and he has worked tirelessly and fearlessly to do so," Kennedy wrote in a September mailing. "The enemies of morality can and will strike back with a vengeance and we must be on guard."
The Religious Right will have an even more direct role in defending Moore against AU's lawsuit. Attorney General Pryor announced in November that he had appointed a team of three lawyers to defend Moore, each of whom will serve in the capacity of deputy attorneys general. Among the attorneys is Herbert Titus, a founding dean of Robertson's Regent University.
Of course, Moore has personally made a series of speeches to rally support for his cause. On August 19, Moore spoke from the pulpit at Cottondale Baptist Church in Tuscaloosa and reiterated the same message he's been emphasizing for years.
"The Ten Commandments represent the laws upon which our government is formed," Moore said. "There is an aversion today to the truth."
Moore went on to share a poem with parishioners that pointed to practices that he feels threaten the country, including homosexuality, abortion and modern science.
"We teach them evolution," Moore said, reading from his poem. "Why can't they see that fear of God is the only solution?"
Despite not having the law on his side and his use of bad poetry Moore appears to have persuaded many of his neighbors in Alabama.
To gauge support for Moore's crusade, the Mobile Register conducted a survey of adults statewide. The results indicated that critics of government-sponsored religion are part of a fairly small minority in the Yellowhammer State.
By a two-to-one margin, Alabamians said they "generally support" the principle of church-state separation. When dealing specifically with the Moore controversy, however, 78 percent indicated support for the Ten Commandments display. In addition, a clear majority of Alabamans 58 percent do not believe federal courts should be called on to rule on the legality of the monument. (Seventy-one percent of respondents identified themselves as "born again Christians.")
Moore's only opposition in the poll came from the style of his tactics. Nearly two-thirds of the people surveyed thought it was wrong of Moore to sneak the monument into the building without conferring with the other justices on the state Supreme Court.
AU's Lynn indicated the poll results are ultimately beside the point, and that he is optimistic about the case against Moore.
"Fortunately, constitutional rights are not open to a popularity contest," Lynn said. "All we ask is for the government to remain neutral on religious matters. No one can reasonably argue with a straight face that the a state Supreme Court justice endorsing the Ten Commandments in the capital's judicial building is religious neutrality. We are confident that our suit will succeed and Moore's campaign to blur church and state will fail."