March 2010 Church & State | Featured

When former Alabama Chief Justice Roy Moore defied federal court orders to remove a 2.5-ton Ten Commandments monument from the foyer of the Alabama State Judicial Building a few years ago, most jurists around the country thought he had gone much too far.

Not Ohio Judge James DeWeese.

“Justice Moore courageously did in this case what his oath required him to do,” DeWeese told Focus on the Family in 2003. “He defended the Constitution by resisting an unlawful order which did such damage to the First Amendment. A government official’s acknowledging God is not an establishment of religion…. The Establishment Clause is a prohibition against the United States Congress. It has no application to state court judges.”

Moore was eventually ousted from the court, but his one-man Ohio fan club is continuing the fight. DeWeese insists he should be able to display the Commandments in his Richland County Common Pleas courtroom in Mansfield, Ohio. Even more alarming, Americans United has uncovered information that indicates DeWeese’s involvement with the Religious Right’s most overtly radical wing. 

In recent years, DeWeese has displayed a poster entitled “Philosophies of Law in Conflict.” In one column, he lists the Ten Commandments, which he calls the “moral absolutes,” and in the other column, he lists the Humanist Precepts — or as he puts it, the “moral relatives.”

DeWeese then states at the bottom of the poster that he joins “the Founders in personally acknowledging the importance of Almighty God’s fixed moral standards for restoring the moral fabric of this nation.”

The poster has become the center of a lawsuit brought by the American Civil Liberties Union of Ohio. A federal district court ruled in October that the sign must come down, but DeWeese, represented by TV preacher Pat Robertson’s American Center for Law and Justice (ACLJ), has appealed the decision to the 6th U.S. Circuit Court of Appeals.

On Jan. 27, Americans United for Separation of Church and State filed a friend-of-the-court brief with the 6th Circuit urging the appellate judges to stop DeWeese from pushing his personal religious views on all who enter his courtroom. (The brief was joined by The Interfaith Alliance, the Anti-Defamation League, the Hindu American Foundation and the Union for Reform Judaism.)

DeWeese, an elected official who has been on the bench for 18 years, insists that his poster does not violate the Constitution. He claims it is just intended to educate the public about competing philosophical and legal theories.

In fact, his critics note, the poster makes it clear that DeWeese is on one side of the alleged religion v. relativism debate. The judge has even gone so far as to claim that societies that do not follow the Decalogue end up like Nazi Germany.

“When Adolf Hitler butchered millions of fellow citizens as biologically inferior, he was acting as a moral relativist,” DeWeese said. “Moral relativism furnishes no ground to condemn Hitler.”

DeWeese’s controversial worldview seems to be shaped by his relationship with some of the most radically theocratic elements of the Religious Right. He is a graduate of the Witherspoon School of Law and Public Policy, a seminar its sponsor, Vision Forum Ministries, describes as “a four-day crash course in biblical principles of law and public policy.”

Vision Forum reminds its students that they cannot “ignore God’s Word as the foundation for law and liberty.”

At first glance, the San Antonio, Texas-based ministry looks like a typical conservative Christian outfit that promotes home schooling, male-dominated families and a literal interpretation of the scriptures. In fact, the group is aligned with Christian Reconstructionism, a movement that seeks to replace secular democracy with a fundamentalist theocracy.

Reconstructionists argue that “God’s law,” including the harsh legal code of the Old Testament, should be binding on modern-day America. They insist that believers of their stripe should re-order (“reconstruct”) governments and establish theocratic rule to pave the way for the Second Coming of Jesus.

Reconstructionists say the Old Testament mandates the death penalty for various offenders, including homosexuals, the “unchaste,” blasphemers, adulterers, witches, those who worship false gods and even “incorrigible” teenagers.

Vision Forum is run by Douglas W. Phillips, son of Howard Phillips, a longtime Republican operative and former Nixon administration official who drifted into Reconstructionism during the 1990s. The organization doesn’t flaunt its alignment with Reconstructionism – probably aware of its controversial nature – but Reconstructionist writers are a staple on its Web site.

Tellingly, the site is littered with columns by William Einwechter, a Pennsylvania pastor who in 1999 authored a controversial essay arguing that the Bible mandates the stoning of “disobedient” teenagers. (Einwechter spoke at the Vision Forum’s 2008 Witherspoon seminar in Fredericksburg, Va., offering lectures on “Christian Jurisprudence” and “The Bible and Female Magistrates.”)

DeWeese has a featured article on the Vision Forum Web site as well. In it, he argues that America was founded on “the fixed law of God” and criticizes court decisions upholding church-state separation, school integration, abortion rights and gay rights as examples of judges changing the law by judicial edict.

The battle between DeWeese and those who support church-state separation has been going on a long time. In 2001, the Ohio ACLU challenged a Decalogue display DeWeese hung in his court room next to a copy of the Bill of Rights.

In 2004, a federal district court and the 6th Circuit ordered the judge to take down his Commandments display. In order to get around that ruling, he created the “Philosophies of Law in Conflict” poster now at issue.

The ACLU again sued DeWeese in 2008, arguing that the new poster also violates church-state separation.

“When he places his poster on the walls of that courtroom, it is not Judge DeWeese exercising is First Amendment rights; it is government action and speech,” plaintiff Bernard Davis wrote in a Dec. 13, 2008, letter to the editor to the Mansfield News Journal. “It is not about attempting to conduct a civics lesson to the public. It is the use of government facilities and his office to promote his views of his Judeo-Christian beliefs on the public who appear in the people’s court.”

The second lawsuit, ACLU of Ohio Foundation v. DeWeese, created a stir in the community. Perhaps unaware of DeWeese’s relationship with the theocratic fringe, prominent figures have expressed a lot of support for his position.

U.S. Rep. Jim Jordan, a Religious Right favorite for his staunch anti-abortion views and support of religious school vouchers, launched an online petition in 2008 to celebrate DeWeese and his stance.

Americans United’s brief, which was drafted by Americans United Legal Director Ayesha N. Khan and AU Madison Fellow Taryn Wilgus Null, with assistance from AU Senior Litigation Counsel Alex J. Luchenitser, reminds the court that DeWeese’s argument has failed in the courts time and time again.

“We’ve seen this before,” Khan said. “He is trying to characterize a blatantly obvious religious display as a legal or philosophical ‘theory.’ It is just another in a long line of efforts by the Religious Right to dress religious doctrine in secular clothing.”

The 6th Circuit will likely determine the fate of the poster by focusing on two U.S. Supreme Court decisions involving Commandments displays on government land.

In 2005, the high court in McCreary County v. ACLU of Kentucky struck down Decalogue posters at two Kentucky courthouses because the purpose of the displays was to advance a particular religious belief.

On the same day, the court in Van Orden v. Perry upheld a Commandments monument on the Texas State Capitol grounds because it was part of a larger presentation with 17 monuments and 21 historical markers. The justices determined that, in that context, the purpose of the overall display was not religious, but historical. 

DeWeese’s purpose, however, is transparently religious, AU states in its brief.

“The new display, like the old one,” says AU, “proclaims God as the ultimate authority and refers to the Ten Commandments as ‘absolutes’ that are essential to society’s survival. DeWeese’s ‘implausible claim that [his] purpose has changed should not carry the day in a court of law any more than in a head with common sense.”

Americans United Executive Director Barry W. Lynn said he is hopeful the 6th Circuit will remind DeWeese of the error of his ways just as the 11th Circuit did Judge Moore.

“Judge DeWeese seems to think he is clever,” Lynn wrote in a Be­liefnet debate blog with ACLJ Chief Counsel Jay Sekulow. “I’d just say he is wrong.”