That Ten Commandments Case
What constitutes an establishment of religion?

Michael Novak
National Review Online Contributing Editor
December 16, 2002

On November 18, Federal Judge Myron Thompson, a distinguished graduate of the Yale Law School presiding for the district court of the United States in the middle district of Alabama, ruled that Chief Justice Roy S. Moore of the Alabama supreme court had 30 days to remove the 3' x 3' x 4' monument of the Ten Commandments from the back end of the towering rotunda in the Alabama state courthouse.

It is not implausible that the Supreme Court has gotten at least partially off-track in its rulings on religion. The Court has brought forth many strained arguments that seem more and more to dissatisfy the justices themselves.

On the other hand, some think that any recognition by the Court of a special role for the God of Judaism and Christianity in this nation's understanding of civil and political rights represents an "establishment" of that religion. Judge Thompson concurs in this view.

But to complicate this conventional view, Chief Justice Moore pointed out in open court that the Virginia Declaration of Rights, Madison's "Remonstrance," and the Virginia Act for Establishing Religious Freedom do appeal to a particular concept of God, with a fairly narrow range of characteristics. This God is almighty, and created the mind free. Further, He wishes to be worshiped by men and women who do so freely, under no duress or coercion, and solely according to the light of their own conscience. Any abuse of the right to religious liberty will have to be answered directly to Him in judgment, for it is an abuse against Him, not solely against humans. To worship Him, but solely as conscience directs, is a duty owed to Him as Creator and Judge. This duty owed Him grounds a personal responsibility and, therefore, an inalienable right. In creating our minds both duty-bound and yet free, in other words, the Creator endowed us with certain rights, among them the right to religious liberty.

It is a matter of inference whether any other God except the God of Judaism and Christianity fits the required range of characteristics. Undoubtedly, from the founding generation until about 50 years ago, American institutions and courts supposed that this God was the God of the Jewish and Christian Bible, to whom the Founders usually referred as "Creator," "Judge," "Providence," and "Divine Governor of the universe."

Judge Thompson explains this historical fact by asserting that such usage may have been fitting when the most American citizens were Christians or Jews. Nowadays, however, that inference goes too far, because we see more clearly that rights are endowed also in Muslims, Buddhists, atheists, and indeed all humans. (Of course, the Founders expressly affirmed this universality too; and it is implicit in the doctrine of "natural rights.") Among the many such religions, furthermore, Supreme Court precedents show that the federal government ought not to show favoritism.

On this basis, Judge Thompson asserts that Justice Roy Moore, in installing his small block of marble in the supreme-court building in Montgomery, is establishing a religion over all citizens of Alabama, or at least over those who come into eye contact with it. Therefore, this particular representation of the Ten Commandments has to go somewhere else.

Yet before we agree with Judge Thompson, it might be useful to make three important distinctions. On the outside wall of the federal courthouse in Montgomery is a much larger statue of Artemis, described in the Court's brochure as the Greek goddess of justice. No one asserts that that statue represents an establishment of religion. Perhaps that is because no one still believes that Artemis is a real goddess. In any case, the mere stone embodiment of her image obliges no one's conscience.

But then, in similar fashion, Justice Moore's mere stone embodiment of a portion of a page from the Book of Exodus, in the form of an abbreviated version of the Ten Commandments, also puts no obligation upon the conscience of anyone who chooses not to accept that text as authoritative.

It seems significant, secondly, that the text chosen by Chief Justice Moore is from the Jewish Testament, not the New (or Christian) Testament. That makes it less sectarian and broader. Furthermore, even if one does not take the Ten Commandments literally, as a gift by the Almighty to Moses, one may take them as a symbol for that higher law ("of Nature and Nature's God") reached by reason itself. Such a higher law has traditionally been seen (by Americans from Founding Father James Wilson of Pennsylvania through Martin Luther King Jr.) as infusing all man-made law, on the one hand, and upholding a standard beyond the power of states or nations to alter or abrogate, on the other. Only such a law is a sure foundation for our rights against the changing tempests of political fortune.

Third, Chief Justice Moore's statue stands at least 90 feet distant, maybe more, from the front entrance of the Alabama state courthouse, all the way across the rotunda at the opposite wall. It is impossible at that distance even to make out what it is, let alone what is written upon it. No one is obliged to approach the small marble block close enough to be able to make out the words.

The small block of marble is low (at four feet), and hardly more bulky around (three feet square) than any of the towering pillars of the rotunda, which rise some 30 feet above it. It seems very small against the large wall of flowing water behind it. The marble stands at the far side of the building where the restrooms are placed, men to the right, ladies to the left. Coming out from them, one cannot make out the words on the block — they are too small; one must approach to about eight feet or closer. To read it, therefore, one must make an effort.

All the texts upon its sides (three on each face) are either already familiar or readily recognizable as classics of U.S. or Alabama law, or quotations from major American Founders. In the sense that Americans are expected to venerate the law, an air of veneration is present, but rather in the form of a history lesson on the American link between religion and law. The four dominant texts come from the U.S. code or the Alabama code.

Judge Thompson writes more than once in his opinion about the sense of the sacred, of piety, almost of prayer generated by the monument. But the rotunda itself with its magnificent upward sweep and vast marble empty space generates that awe and reverence even without the small statue; it is one of the loveliest courthouse spaces to be seen in this country, and has been cited in architectural awards. It forces upon the entrant a certain silence and veneration, even before one can possibly succeed in finding and approaching the small block of marble that is currently in dispute. The sense of the sacred will not be diminished by the removal, if it ever occurs (after appeal), of that small block. The statue is dwarfed by its surroundings.

Still, the main point in this case is the unique character of the Jewish and Christian God. The God of Abraham, Isaac, Jacob, and Jesus is unlike any other God known to the ancient religions of Greece, Rome, or the Middle East, or any other religion known to our Founders. Uniquely, this God wishes to be worshiped in spirit and truth, in whatsoever manner conscience directs, without coercion of any sort. This God reads hearts. He is satisfied only with purity of conscience and conviction. Those who belong to any other religion or tradition, or who count themselves among agnostics or atheists, are thereby given by this God equal freedom. They, too, must follow their conscience. This God wishes to be worshiped by men and women who are free, not under duress.

In this way, His sovereignty guarantees religious liberty for all; arising from His sovereignty, the rights He endows cannot be abrogated by a tyrannical majority among the people, or by the actions of the state in any of its branches. This conception of religious liberty is spelled out directly in the Virginia Declaration of Rights, in Madison's "Remonstrance," and in the Virginia Act for Establishing Religious Freedom. For example, the Declaration of Rights affirms:

That religion, or the duty which we owe to our Creator and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and therefore, all men are equally entitled to the free exercise of religion, according to the dictates of conscience; and that it is the mutual duty of all to practice Christian forbearance, love, and charity towards each other.

There lies the classic American definition of religion and the foundation for religious liberty. To this definition, some make one or more objections. For instance, some point out that Christians (and Jews) have not always respected this principle, and thus try to discredit its Jewish and Christian origins. But human failure is no argument against the principle; human weakness is measured by it.

Second, one can say (as Judge Thompson does, quoting from Stephen Carter in a footnote) that among Muslims, Hindus, Buddhists, and others there have been examples of generations of "tolerance." But tolerance is a different (and less profound) concept than the right to religious liberty. Tolerance may arise merely from a temporary lack of power to enforce conformity. The right to religious liberty obliges us to learn tolerance; tolerance alone does not invoke a natural right.

Rather, the concept of religious liberty depends upon a particular conception of God, a particular conception of the human person, and a particular conception of liberty. Reaching these particular conceptions took Jews and Christians many centuries. They had to be learned through failure and sin and error, and at great cost. But they were eventually learned.

A scholar who today can easily point to texts in the American tradition for definitions of these new concepts would face a steep burden in trying to locate analogous texts in other traditions. Rightly did the authors of Federalist 14 call attention to their own originality, even as they exerted themselves to pay due respect to the opinions of past ages.

For this reason, calling the attention of the public to the Judeo-Christian conception of God's sovereignty, which grounds the principle of religious liberty, is not necessarily the same as "establishing" the Jewish or Christian religions.

In the first place, this conception is by its very nature a public conception, not a private one, and has historically been invoked in the practice of existing public institutions, such as the several states and the federal government, in countless forms. The public life of our nation has been and is still remarkably religious, as is visible on public occasions such as the inaugural speeches of presidents, the swearing-in of judges, Thanksgiving Day, Independence Day, Memorial Day, and others. The notion that the foundation of our rights lies in God's work has been officially deployed in many congressional and presidential decrees and proclamations, which recommend religious observances such as fasting, prayers, thanksgiving, and imploring pardon for the nation's sins.

In the second place, the principle of religious liberty (as witnessed to in all the relevant founding documents and in the public practices of the founding era) requires two courses of action: First, one must enunciate the principle clearly, understand it fully, and express it publicly for public guidance, as the early Declarations did. Second, one must not coerce the conscience nor obstruct the free exercise of religion of any. No one can impose upon any American citizen belief in or the worship of the Jewish or Christian God, or any other God.

The specifically American principle of religious liberty in and of itself demands that each person must be allowed to follow his or her own conscience. Each person's decision about how (if at all) to worship God is inalienable, for it belongs to each alone in his or her own conscience, and to no one else. Everyone must be free in conscience and free in public exercise to accept, or to reject, the Judeo-Christian God. So runs the Jewish and Christian conception of God, conscience, and liberty.

Even if unbelievers choose not to recognize this conception, but rather to concentrate upon abuses of the principle committed by Christians or others, this particular conception guarantees their freedom of conscience. It is also precious for believers, who are obliged by it to grant to all others exactly the same right to religious liberty that they claim for themselves.

This was exactly the point made by Chief Justice Moore in his oral testimony at the trial. He said again and again that he stood for two things, both of them derived from the Virginia Declaration of Rights, Madison's "Remonstrance," and the Virginia Act for Establishing Religious Freedom. First, human rights are guaranteed by the sovereignty of God, with the result that any abuse of them will have to be answered for before God in Judgment (as Madison pointed out). Second, he neither intended to nor could demand that others share these beliefs, since that would violate the principle of religious liberty itself.

Chief Justice Moore recognized that in historical fact, our rights are endowed in us by our Creator, as the fundamental law of the United States asserts and the Constitution of Alabama reiterates. But he did not want to coerce anyone to share in the same form of worship or belief as he does (or the Founders did). He wished "to recur to fundamental principles," by calling attention again to the Founders' beliefs about the grounding of our rights.

In Moore's eyes, it is the special virtue of the Jewish and Christian conception of God that it allows us to make a twofold claim: to recognize in public the beliefs on which our rights are founded, and to refuse to mandate for others that they must hold the same beliefs. He is free to exercise his duty as chief justice in calling attention to the moral foundation of our rights, without by the same deed trying to force Jewish or Christian belief upon Muslims, Buddhists, atheists, agnostics, or anyone else.

As Justice Moore sees it, the principle of religious liberty enunciated in our great founding documents does exactly no more and no less. It calls attention to the moral foundation of our rights in our inalienable duty to our Creator, and in the same formulation declares the fundamental liberty of all consciences to choose the form and manner of fulfilling that duty.

Justice Moore asserts that he is doing what the Virginia Assembly did in the Virginia Declaration of Rights and the Virginia Act for Establishing Religious Freedom, and what Madison did in his "Remonstrance." He cites George Washington's Proclamation of General Thanksgiving (October 3, 1789), in which, in response to a request from both Houses of Congress, Washington notes that "It is the duty of all Nations [note: not only individuals] to acknowledge the providence of Almighty God, to obey his will, to be grateful for his benefits, and humbly to implore his protection and favor..." If both houses of Congress and the president of the United States could go so far in 1789, why is it forbidden by the Constitution for a mere chief justice of the supreme court of Alabama to do even less?

The chief justice also likes to cite Abraham Lincoln's beautiful Decree of August 12, 1861, which also followed upon a resolution of both Houses of Congress: Recognizing that "it is fit and becoming in all people, at all times, to acknowledge and revere the Supreme Government of God," Lincoln proclaimed a National Fast Day to ask the favor of Almighty God. If all this was not an establishment of religion in 1861, why does doing far less barely a century and a half later constitute attempting to "establish" a religion? Clearly, the meaning of "establish" has now swollen far beyond its historic meaning.

Curiously, Judge Thompson refuses to define the central word in his decision — the word religion. Yet, in fact, a powerful definition was entered into the historical record by the Virginia Declaration of Rights and the Virginia Act for Establishing Religious Freedom, as well as from Madison's "Remonstrance," viz., "religion, or the duties we owe to our Creator and the manner of discharging those duties." The transcript of the trial also contains the definition of religion in Noah Webster's Dictionary of 1828, another favorite of Chief Justice Moore, which firmly records the term's usage over the period of the founding — and ties it, incidentally, to the Commandments of God.

There is a feeling widespread in the land that starting about 60 years ago, the Supreme Court took a half-truth about the meaning of "establishment" and carried it by torturous logic to conclusions quite open to ridicule. Against the whole of its prior tradition, and the tradition of American public life, the Court has come to seem radically anti-religious, particularly anti-Jewish and anti-Christian. The Court shifted its focus from the constitutional term "religious liberty" to the much more recent polemical slogan "separation of church and state."

We should not want the Court to be pro-Jewish or pro-Christian. But we must insist that it show reverence for the moral foundations of the principle of religious liberty, and these foundations have been well-located in Jewish and Christian conceptions by the classic documents brought to our attention again by Chief Justice Moore. It is not necessary to embrace these particular conceptions. Unavoidably, however, anyone wishing "to recur to fundamental principles" will have to measure rival conceptions by those historically agreed to at the Founding.

Chief Justice Moore is not an alumnus of Harvard Law School or Yale Law School, and is neither of an elite and famous family nor of a high-status background. But he is a profound believer in the principle of religious liberty, and an unusually thoughtful student of the origins and sources of that principle. He is a serious believer in the God written of with palpable reverence by our nation's Founders and later forebears.

Nonetheless, the chief justice wants in a more modern manner to respect the full religious liberty of many new citizens who are of different faiths and traditions. For them, too, he underlines the originality of our Founders in the matter of religious liberty. Ours is a precious conceptual heritage, not yet embodied in all cultures of this planet. It needs to be set forth publicly so that all new immigrants might come easily to learn of it, even as they develop equivalent conceptions from the materials of their own traditions.

Someone might counter that yes, of course, Chief Justice Moore is correct about the history of our conception of religious liberty, as expressed in the Virginia documents, among others. But he went further than that. He holds that that conception is true. And he is actually giving witness to the sovereignty of God, not merely saying that our ancestors once did. Isn't that going too far? Well, how does his official action differ from the official exercise of religion shown by Washington in his Proclamation of 1789 and Lincoln in his Decree of 1861?

The beauty of our forebears' conception of religious liberty is that it can be held as a truth by most Americans, respected by all, commended to newcomers as a model, yet never forced it upon the conscience of anyone. That is precisely what the principle of religious liberty demands: Cherish it, teach it, but do not force it upon anyone. And that is what Chief Justice Moore believes that his silent monument does — sits there as a teacher, coercing no one.

Is it reasonable to call that an establishment of religion? When all the relevant distinctions have been made, it is difficult to see how it can be.

Chief Justice Moore has rendered a brave and invaluable service to our entire nation by bringing this richly interwoven fabric of conceptions, so delicately knit together at our nation's Founding, to the notice of the courts. The pattern is far more complex than the Court in recent decades has taken into its cognizance. In this, he has fulfilled the highest duties of his office.

Michael Novak, winner of the Templeton Prize for Progress in Religion in 1994, was an expert witness for the defense in Glassroth v. Moore. His latest book is
On Two Wings: Humble Faith and Common Sense at the American Founding.

Copyright 2002 – Michael Novak and NRO

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18 dec 2002