A gracEmail subscriber has asked for my comments, as an attorney and a Christian teacher, regarding the controversy surrounding the installation of the Ten Commandments in the Alabama Judicial Building and the federal judge's order to remove the monument on which they are inscribed.
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Alabama Chief Justice Roy Moore is much in the news lately. As a trial court judge, he hung a framed copy of the Ten Commandments in his Alabama courtroom. More recently, as the highest-ranking judge in his state, Mr. Moore had a 5,280-pound granite monument installed in the Alabama supreme court building engraved with the Decalogue and an assortment of God-honoring quotations from various legal and quasi-legal American sources.
The American Civil Liberties Union (ACLU) and two other groups filed suit and federal judge Myron Thompson ordered Mr. Moore to remove the monument on grounds that it constituted an establishment of religion in violation of the First Amendment of the United States Constitution. The 11th U.S. Court of Appeals affirmed Judge Thompson's order. Chief Justice Moore refused to comply, appealing to divine authority and to his own interpretation of the First Amendment. After the federal judge threatened substantial fines, the other justices of the Alabama Supreme Court voted unanimously to overrule their chief and agreed to remove the monument.
To some observers, Mr. Moore is a heroic defender of religious liberty and states' rights, standing bravely against the encroachments of secular culture and an oppressive federal judiciary. Others see him as an opportunistic fundamentalist, defiantly resisting the rule of law for his own political ends. We do not need to judge Mr. Moore motives, or even his methods, in order to reflect on the legal situation. Because this is a topic of considerable interest to many gracEmail readers in the United States, I want to make a few observations about it in the next few gracEmails -- begging the indulgence of subscribers throughout the rest of the world.
The First Amendment to the U.S. Constitution guarantees religious liberty with two clauses: "Congress shall make no law respecting an establishment of religion, nor prohibiting the free exercise thereof." If asked what these two clauses mean, many Americans would respond that they mean whatever their authors meant when they wrote them. History makes plain what the founders meant. They intended for the newly-formed federal government to keep its nose out of religion within the various states, leaving the states to do just about anything they respectively wished.
Ten of the original 13 colonies had official ("established") state religions, including Anglicanism, Congregationalism and Protestant Christianity in general. Under the First Amendment, the states remained free to designate official state churches. States could levy taxes in order to support the official state church, pay its ministers and build and maintain its meeting-places. So far as the First Amendment was concerned, states could discriminate against all forms of religion other than their own established churches. (Some states themselves passed laws that prohibited these things and they were free to do that as well.) But whatever individual states might do, the First Amendment said that the federal Congress -- the law-making branch of the national government -- could neither promote one form of religion above another (the Establishment Clause) nor hinder any particular religion (the Free Exercise Clause).
Today these constitutional clauses mean much more than that, for the Constitution is a "living" document -- its words ever-applicable to new situations through the years. Because its authors did not know the future, they could not possibly speak specifically to every future circumstance. For this reason, the Constitution evolves with the changing times. Its ancient words take on new meanings for new situations. Often those new meanings would have been unimaginable to the founding fathers. That is not surprising, for time did not freeze at the beginning of the 19th century.
However, those new constitutional meanings and applications must build on legal interpretations from the past. This principle of following legal precedent is called "stare decisis." Courts can modify former rulings. They can expand case law or limit it, affirm it or abolish it. When courts modify existing law, the existing law morphs into something new. Federal courts interpret the federal Constitution and the U.S. Supreme Court has the final word. In our system of jurisprudence, the Constitution legally means whatever a majority of the nine Supreme Court justices has most recently said that it means. There is no right of private interpretation here, not for regular citizens, not for lawyers, not for judges -- not even for chief justices of state supreme courts. We might not like that or think that it is right. But whether we like it or not, that is the way it is.
For about 150 years, the First Amendment applied only to the federal government; states were free to discriminate between religions if they wished. Following the Civil War, however, a seed was planted that would eventually change the legal landscape in a way the founding fathers never envisioned. That seed was the passage of the 14th Amendment which provided in part that "no state shall . . . deprive any person of life, liberty or property without due process of law." In the 1947 case of Everson v. Board of Education, the Supreme Court held for the first time that the First Amendment's guarantee of freedom from an "establishment of religion" was one of the liberties protected by the Due Process Clause of the 14th Amendment. Since 1947, states and smaller governmental entities have also been forbidden to respect an establishment of religion.
According to the Supreme Court in the Everson decision, "The establishment of religion clause means at least this: Neither a state nor the federal government may set up a church. Neither can pass laws that aid one religion, aid all religions, or prefer one religion over another. Neither can force a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. . . . Neither a state or the federal government may, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect 'a wall of separation between church and state.'"
The Constitution itself does not mention any "wall of separation between church and state." In my opinion, judicial activist judges have made far more of this metaphorical wall than is appropriate. Jefferson himself used the phrase only with regard to the federal government. Like his fellows of the first American generation, Jefferson believed that states could be deeply involved in religion. He proposed that the state of Virginia teach the moral principles of the Bible in its schools. The founding fathers likely would have been horrified had someone told them that within 150 years the First Amendment would apply also to the states. But they also could not have envisioned a United States populated by millions of Muslims, Hindus and Buddhists from throughout the world. It was inevitable that the First Amendment's application would be broadened to include all levels of government. It was also inevitable that its protections would be broadened to include citizens of all religions, Christian or otherwise, as well as citizens who preferred no religion at all.
Would we want to say that American citizens of non-biblical religions are not entitled to the guarantees of the First Amendment? Does freedom of religion apply only to Christians and to Jews? Ought the State of Utah to be allowed to pass laws making Mormonism its official state religion, supporting that religion with state taxes and prohibiting its citizens from all other religious practice? Do we want Buddhist shrines in our courthouses, or Jehovah's Witness translations of the Bible, or even statues of the Virgin Mary?
The First Amendment creates a legal tension. On the one hand, it prohibits the establishment of religion. On the other hand, it guarantees religion's free exercise. When does the first liberty begin to encroach on the second? If I and people like myself constitute a majority, when does our free exercise of religion begin to meld into an improper establishment of religion? The Supreme Court itself has no clear answers and no bright-line distinctions. The justices on that Court do not all answer these questions the same way. A majority of the Court has given some guidelines, however, and we will look at those guidelines next. Whatever we might think of these guidelines as Christian citizens, they are the current law of the land.
In the 1971 case of Lemon v. Kurtzman, the U.S. Supreme Court provided a three-part test for deciding whether a law or governmental action constitutes an "establishment of religion" and is therefore unconstitutional. Under this "Lemon test" a court asks: (1) whether the law or action of government has a genuine secular purpose; (2) whether it has the primary effect of either advancing or inhibiting religion; and (3) whether it excessively entangles religion and government. By answering these questions, courts attempt to walk the tightrope between the two Religion Clauses of the First Amendment. The Supreme Court modified the Lemon test in 1977 to focus less on subjective intent and more on actual effect.
Individual justices of the Supreme Court have suggested other tests as well. Justice Anthony Kennedy has proposed the "coercion test," under which an action or law does not violate the Establishment Clause unless it directly aids religion in a way that tends to establish a state church or it coerces people to support or participate in some religion against their will. Justice Sandra Day O'Connor has proposed the "endorsement test" which asks whether a law or governmental activity amounts to an endorsement of religion. This test has been used widely in cases involving prayers at graduation, religion in school curricula and religious signs on government property. As hard as it might be to fairly apply, a majority of high court justices will likely continue to emphasize the principle of religious neutrality: does a law or activity favor one religion over another, or religion over non-religion, or the other way around? If the answer is "yes," that law or action is unconstitutional.
Federal courts still disagree regarding public displays of the Ten Commandments. In a 1980 case (Stone v. Graham), the Supreme Court found a Kentucky law unconstitutional which required the Ten Commandments to be posted in public school classrooms of that state. Although the Commandments have historical significance in the foundations of American and English law, the Court pointed to the command to worship only the God of the Bible and concluded that the Kentucky law had a religious purpose. Several lower federal courts have found displays of the Ten Commandments unconstitutional when the Commandments were specifically displayed but constitutional when inconspicuously found in combination with other, purely-secular symbols or artifacts.
Such reasoning offers no real comfort to Christians of conviction, for it says in effect that governmental displays of religion are justified only when they are meaningless. The federal courts have applied this concept, sometimes called "ceremonial deism," in approving a variety of practices considered lacking in religious content but hallowed by historical usage. Examples of such "ceremonial deism" include prayers in Congress and at inaugurations, the national motto ("In God We Trust") and the use of Bibles for administering oaths in court.
How ironic it would be if Alabama Chief Justice Moore's monument -- which he says he installed as an act of absolute piety and devotion to God -- should finally be approved on the grounds that it lacks any religious significance! I cannot imagine that Mr. Moore or any of his supporters would consider that a victory for Christianity or a vindication of their personal faith in God. Yet under current constitutional law, that might well be the only basis on which the monument can receive legal approval. What are devout Christian believers to make of all this? Some thoughts on that in our next and final installment.
There can be no doubt that a culture war is underway in our country. Anti-religious forces, personified by the American Civil Liberties Union and other such groups, constantly exploit the legal system to further their values of secularism, pluralism and "diversity," and to drive every trace of our Judeo-Christian heritage from public view. The entertainment industry and much of the media support the same anti-biblical agenda. In the face of all this, what are we as Christian citizens of the United States to think and to do?
First, we should give thanks. Despite all the victories of the secularists, our culture retains more remnants of its biblically-based heritage than that of any other country in the so-called "Christian" world. Second, we should pray -- for our rulers (including those judges who sometimes cause us so much irritation and agony), for revival (of the professing Church, for starters), for unbelievers (especially our cultural opponents). God is still on the throne of the universe and he still answers prayer that is according to his will. Third, we may exercise our democratic privilege of voting, for judges when that is possible and for those at all levels of government who appoint them. Even when they strive for objectivity, judges remain men and women also with opinions, convictions, values and biases. Given the choice, I prefer judges who share my core values and biblical faith.
Fourth, we need to commend our faith to others by our own godly and well-ordered lives (read 1 Peter 1-5 about this). God has commanded us to obey civil authorities -- and that is not conditioned on our liking or agreeing with the law. The time might come when, like the early believers, we have to choose between obeying God and man, and then the choice is clear (Acts 4:18-20). But God has not commanded us to place Ten Commandment monuments in state judicial halls. He did tell his people Israel to post his commandments in their own houses (Deut. 6:6-9). It is possible for us to be so caught up with symbolic public displays of religion that we neglect the place where faith is transmitted best -- our own hearths and homes. Both Old and New Testaments tell us that God really wants to write his laws in our hearts (Jer. 31:33; Heb. 8:10). When that happens, we will preach much without saying a word.
Finally, we need to remember that God's kingdom does not depend on any earthly government for support (John 18:36). Throughout history, Christians have tried to gain political power to support God's kingdom and every such attempt has resulted in dismal failure. That has been true whether we think of Constantine, Calvin or the Christian Coalition. The time is coming when all earthly governments will disappear and God's kingdom will reign from pole to pole (Rev. 11:15). When that happens, it will not be of our doing but of God's. There is a very good reason why we pray: "Thine is the kingdom, and the power, and the glory, forever. Amen." (Matt. 6:13.)
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