December 2002 Church & State | Featured

Any doubts that Alabama Supreme Court Chief Justice Roy Moore holds extreme views about non-Christian faiths should have been erased about six weeks ago.

Facing a lawsuit to force him to remove a two-ton Ten Commandments monument from the building that houses the Alabama Supreme Court, Moore took the stand in a federal courthouse in Montgomery in mid October to make his case. During testimony, he put forth his view that God is sovereign over both church and state and that the Decalogue display was merely intended to acknowledge that.

U.S. District Judge Myron H. Thomp­son didn't seem persuaded. From the bench he asked Moore, "Would you acknowledge that Buddhism is a religion?"

Moore replied, "Buddhism was considered a false religion by the forefathers. It is not my definition of religion, no. It was not their definition of religion under the First Amendment of the Constitution."

"I wasn't really asking that," Thomp­son said. "I was just asking whether religion within the confines of the First Amendment as you view it historically [if] the term 'religion' includes Buddhists, the Islamic faith, the Hindus?"

Moore refused to budge.

"I don't think so, sir, that Buddhists and other faiths and I won't speak to all faiths because I'm not a theologian recognize the Creator, God," he replied. "Some might, but if they do, it's not the God of the Holy Scriptures. And that's why the Bible is used for the very foundation upon which we take our oaths."

Those candid expressions of official intolerance would come back to haunt Moore. On Nov. 18, Judge Thompson issued a ruling striking down Moore's display of the Ten Commandments at the Judicial Building in Montgomery and in his opinion cited the chief justice's comments about what constitutes a religion.

Thompson was clearly troubled by Moore's remarks.

"[T]he court cannot accept the Chief Justice's proposed definition of the word 'religion' because it is, simply put, incorrect and religiously offensive," Thompson wrote. "The court cannot accept a definition of religion that does not acknowledge Buddhism or Islam as a religion under the First Amendment and would in fact directly violate Supreme Court precedent by doing so."

Thompson's 96-page opinion in Glassroth v. Moore marked an important legal milestone: For the first time, Moore had been forced to defend his extreme interpretation of church-state separation in a federal court and he failed utterly to persuade the judge.

Moore had brought the Ten Commandments sculpture, which he commissioned and paid for with private donations, into the Judicial Building late in the evening of July 31, 2001 after all of the other workers had gone home. Moore did not consult with his fellow justices beforehand, saying that as chief justice he had the legal authority to redecorate the building. 

Officials at Americans United for Separation of Church and State, which helped bring the lawsuit against Moore, welcomed the decision.

"This ruling is a big setback to Roy Moore's religious crusade," said the Rev. Barry W. Lynn, executive director of Americans United. "It's high time Moore learned that the source of U.S. law is the Constitution, not the Bible."

Moore has been on a Ten Command­ments campaign for several years. He first achieved national prominence in 1995 when, as a state judge in Etowah County, he refused to remove a hand-carved Ten Commandments plaque from his courtroom. That action sparked two lawsuits, both of which were dismissed on technical grounds.

The fame Moore received from the lawsuits made him a type of folk hero to the Religious Right. Several organizations took up his cause, but none more strongly than TV preacher D. James Ken­nedy's Coral Ridge Ministries. Kennedy, based in Ft. Lauderdale, Fla., began raising money for Moore's legal defense and featuring him in national television broadcasts. Moore also began speaking at Religious Right gatherings and even made a few forays into Washington.

At some point, Moore decided to use his celebrity as a springboard to higher office. In 2000 he announced his candidacy for chief justice of the Alabama Supreme Court, which is an elected position. Moore heavily played up his role as the "Ten Commandments judge" and eagerly sought Religious Right support. He was elected easily.

Once in office, Moore bided his time. During the campaign, he had promised to display the Ten Commandments in the Judicial Building if elected. But for several months he did nothing. Some of Moore's supporters were starting to get impatient when Moore, with no advance notice, took action and brought the sculpture into the building on July 31. (For a full account of Moore's antics, see "Monumental Mistake," December 2001 Church & State.)

A legal showdown was inevitable. Earlier this year, Americans United joined forces with the American Civil Liberties Union of Alabama to bring suit against Moore. In addition, a separate legal case was filed by the Southern Poverty Legal Center in Montgomery. The cases were consolidated, and all three organizations worked in concert. In October, AU Legal Director Ayesha Khan traveled to Montgomery to participate in the trial.

AU and the ACLU filed the legal action on behalf of several Alabama residents who regularly do business at the Judicial Building. On the stand, these plaintiffs argued that they do not want their state's highest court to endorse any religion.

Moore tried to argue that the display was simply an acknowledgement of the role the Ten Commandments has played in underpinning the secular law. But Judge Thompson believed otherwise, holding that "the evidence was overwhelming and that law is clear" that Moore violated church-state separation by endorsing religion at state expense.

Calling the monument "a consecrated place, a religious sanctuary, within the walls of a courthouse," Thompson wrote, "While the secular aspect of the Ten Commandments can be emphasized, this monument, however, leaves no room for ambiguity about its religious appearance. Its sloping top and the religious air of the tablets unequivocally call to mind an open Bible resting on a podium. While the quotations on the monument's sides are non-Biblical, they still speak solely to non-secular matters, that is, to the importance of religion and the sovereignty of God in our society; these non-Biblical quotations are physically below and not on the same plane with the Biblical one. 

"Further," continued Thompson, "there is the ineffable but still overwhelming sacred aura of the monument.... [I]t was not surprising to learn that visitors and court employees found the monument to be an appropriate, and even compelling, place for prayer. The only way to miss the religious or non-secular appearance of the monument would be to walk through the Alabama State Judicial Building with one's eyes closed."

The federal judge then went on to warn about the dangers of adopting Moore's view of church-state relations.

"The Chief Justice's understanding of the relationship between God and the state," observed Thompson, "comes uncomfortably too close to the adoption of 'a government of a state by the immediate direction or administration of God,' that is, a 'theocracy,' albeit in the Chief Justice's mind a tolerant one. The court must unequivocally reject the adoption of an approach that could lead to that outcome."

Thompson was also troubled by Moore's close relationship with TV preacher Kennedy, who bankrolled the Alabama judge's legal defense and repeatedly used Moore's crusade for fundraising purposes. (For example, Moore permitted a Coral Ridge film crew to tape the installation of the monument the evening of July 31, 2001. Kennedy, a "Christian nation" enthusiast, then sold copies of the tape to his supporters to raise money for Moore's legal defense.)

In a lengthy footnote, Thompson wrote, "In a real sense, therefore, the installation of the monument can be viewed as a joint venture between the Chief Justice and Coral Ridge, as both parties have a direct interest in its continued presence in the rotunda.... In a very real way, then, it could be argued that Coral Ridge's religious activity is being sponsored and financially supported by the Chief Justice's installation of the monument as a government official." 

Thompson also rejected another of Moore's common arguments: that Ten Commandments displays have a long history in America and are common in federal buildings. This contention, also frequently put forth by Religious Right groups, cannot be sustained upon closer examination, Thompson wrote.

The Founding Fathers, Thompson noted, made no effort to display the Ten Commandments in early government buildings. Thompson pointed out that a statue of Moses holding tablets that represent the Ten Commandments is displayed at the U.S. Supreme Court building which was constructed in 1932 but he noted that no words are visible on the tablets and that, in any case, the figure is part of a larger display about the evolution of the law that contains many other non-religious leaders and icons.

Observed Thompson, "[P]ublic, governmental displays of the Ten Commandments, installed with the purpose of proselytization and having a religious effect, are not 'deeply embedded in the history and tradition of this country'; indeed, most date from the twentieth century. Thus, the Chief Justice has failed to show that similar displays are common or even generally accepted in this country.... No other Ten Command­ments display presents such an extreme case of religious acknowledgement, endorsement, and even proselytization. In other words, if there is a Ten Commandments display tradition in this country, it is definitely not the tradition embodied by the Chief Justice's monument."

What happens next? Thompson gave Moore 30 days to remove the monument, but Moore's attorneys have already announced that they will appeal. It's possible that the court will allow the sculpture to stay up while the U.S. 11th Circuit Court of Appeals considers the case.

One of Moore's supporters, Alabama Christian Coalition President John Giles, has hinted darkly at resistance to Thompson's order.

"I am afraid the judge's order putting a 30-day limit on removal of the monument will lead to an uprising of citizens protesting removal of that monument," Giles said.

Moore himself, speaking to reporters the day after the ruling was issued, refused to rule out the possibility of open defiance of the federal court.

"I have no plans to remove the monument, and when I do I will let you know personally," Moore said during a press conference.

Moore was asked if he would try to physically block efforts to remove the monument, like Alabama's segregationist governor George Wallace, who in June of 1963 defied a federal court order and, backed by 150 state patrolmen, personally stopped two black students from enrolling at the University of Alabama in Tuscaloosa. 

A non-committal Moore would only say that he has not yet decided what he will do. However, he did question the right of a federal court to tell him to remove the monument, remarking, "There is great confusion in the federal courts on this issue." 

AU's Lynn said such talk is irresponsible. Lynn added that he believes Americans United and its allies will prevail on appeal.

"Judge Thompson's ruling is well grounded in legal precedent," Lynn said. "One by one, it debunks every spurious claim advanced by Moore and his defenders. I'm confident it will survive on appeal and that in time Alabama's Judicial Building will once again be a place that welcomes all residents of the state."