June 2003 Church & State | People & Events

American law is not based on the Ten Commandments, and nothing in the Constitution gives an Alabama judge a legal right to display the Decalogue in a court building, a group of legal historians and other scholars has advised a federal appeals court.

Forty-one law professors and legal historians weighed in on a lawsuit challenging Alabama Supreme Court Chief Justice Roy Moore's display of the Ten Commandments in the state Judicial Building in Montgomery. The scholars were brought together by Steven K. Green, former legal director at Americans United and now law professor at Willamette University College of Law in Salem, Oregon.

The friend-of-the-court brief, filed April 28, musters ample historical evidence to debunk claims by Moore's attorneys that the judge has the right to display the Ten Commandments because they are the foundation of American law.

Nothing in the nation's legal history supports Moore's view, the legal scholars and historians say.

"Aside from a failed attempt in the seventeenth century to establish a biblically based legal system in the Puritan colonies, American law is generally viewed as having secular origins," asserts the brief.

The brief notes that "various documents and texts" figured in the development of American law, among them English common and statutory law, Roman law, the civil law of continental Europe and private international law.

American law, they point out, was also influenced by the writings of William Blackstone, John Locke, Adam Smith and others as well as the Magna Carta, the Federalist Papers and other sources.

"Each of these documents had a far greater influence on America's laws than the Ten Commandments," asserts the brief. "Indeed, the legal and historical record does not include significant and meaningful references to the Ten Commandments, the Pentateuch or to biblical law generally."

The brief notes that the U.S. Constitution lacks even "a perfunctory or formalistic reference to God" and says during the debate over ratification of that document, delegates discussed Roman law, British law and the laws of other European nations but "as can best be determined, no delegate ever mentioned the Ten Commandments or the Bible."

Concludes the brief, "While the Ten Commandments have influenced some of our notions of right and wrong, a wide variety of other documents have played a more dominant and central role in the development of American law. No respected scholar of legal or constitutional history would assert that the Ten Commandments have played a dominant or major role, or even a significant role, in the development of American law as a whole. To insist on a closer relationship or to claim the Ten Command­ments has a special place in the development of American law lacks historical support."

The lawsuit against Moore, sponsored by Americans United, the American Civil Liberties Union of Alabama and the Southern Poverty Law Center, is pending before the U.S. Court of Appeals for the 11th Circuit. (Glassroth v. Moore)

In addition to the legal scholars' brief, a brief opposing Moore's position was filed by the Baptist Joint Committee on Public Affairs, an array of Alabama clergy, the Commission on Social Action of Reform Judaism, the Interfaith Alliance, the Interfaith Alliance of Alabama and the Stated Clerk of the General Assembly of the Presbyterian Church (U.S.A.). Separate briefs were also filed by the American Jewish Congress and the Arab-American Anti-Defamation League.

On April 30, TV preacher D. James Kennedy, Moore's primary financial supporter, announced that he had raised an additional $150,000 to pay for Moore's legal defense, bringing to $375,000 the total amount Kennedy has raised on Moore's behalf so far.

In a press release, Kennedy claimed that nearly 180,000 supporters have signed a petition backing Moore. The petition declares in part, "The Com­mand­ments are at the foundation of America's legal and religious heritage. The right of our communities to display the Ten Commandments should not be infringed."