A United States Court of Appeals has affirmed a federal district court order directing the Chief Justice of the Alabama Supreme Court to remove the large stone monument he had installed in the rotunda of Alabama's most important courthouse, which displays a Protestant version of the Ten Commandments. Glassroth v. Moore, 11th Cir. Nos. 02-16708 & 02-16949 (Decided July 1, 2003) (Opinion in .pdf)

The Ten Commandments Judge

When Roy S. Moore was an Alabama state trial court judge in the Circuit Court of Etowah County, Alabama, he got himself into trouble hanging a wooden plaque of the Ten Commandments in his courtroom. His actions raised quite a ruckus and inspired two lawsuits, one against him by some liberal do-gooders, one in his favor by the State of Alabama (naming as defendant, for no apparent reason the ACLU). The lawsuits never got anywhere but gave Judge Moore a lot of publicity. During his campaign for the Chief Justice position in the November 2000 election, then-Judge Moore’s campaign committee, capitalizing on name recognition from the lawsuits, decided to refer to him as the “Ten Commandments Judge.”

Lawyers and litigants seeing the archaic and sectarian version of the Ten Commandments had best take it as fair warning: Justice Moore brings extreme, right-wing Evangelical dogma to work. In 2002, Moore wrote in a concurring opinion in an Alabama Supreme Court case, denying a lesbian mother custody of her children, that homosexuality is "abhorrent, immoral, detestable, a crime against nature, and a violation of the laws of nature". (Moore's opinion will have to be revisited under the Supreme Court's recent decision in Lawrence v. Texas.) Moore has been quoted as saying he intends to "reclaim America for Christ, whatever the cost."

After getting elected Chief Justice of the Alabama Supreme Court, Justice Moore had a 5,280 pound marble monument of the Ten Commandments placed in the center of the rotunda of the Alabama State Judicial Building,in the middle of the night on July 31, 2001. That building houses the Alabama Supreme Court, the Court of Criminal Appeals, the Court of Civil Appeals, the state law library, and the state’s Administrative Office of the Courts. Justice Moore did this without the knowledge or consent of his fellow justices (but as Chief Justice, he had legal authority to decorate the rotunda as he saw fit.)

Privately raised funds paid for the sculpture, but Moore allowed a film crew from Coral Ridge Ministries -- the Religious Right organization run by Florida-based televangelist James Kennedy -- to tape footage of the monument's construction and installation. Coral Ridge later sold the videotape as a fundraiser and has paid for Moore's legal defense. ¹

Whose Ten Commandments?

Before discussing the 11th circuit's opinion, let's take a close look at the monument so prominently displayed in the most important building in Alabama's judicial system. Chiseled onto the monument are excerpts from Exodus 20:2-17 of the King James Version of the Holy Bible.

The left one reads:
I AM THE LORD THY GOD
THOU SHALT HAVE NO OTHER GODS BEFORE ME
THOU SHALT NOT MAKE UNTO THEE ANY GRAVEN IMAGE
THOU SHALT NOT TAKE THE NAME OF THE LORD THY GOD IN VAIN
REMEMBER THE SABBATH DAY, TO KEEP IT HOLY

The right one reads:
HONOUR THY FATHER AND THY MOTHER
THOU SHALT NOT KILL
THOU SHALT NOT COMMIT ADULTERY
THOU SHALT NOT STEAL
THOU SHALT NOT BEAR FALSE WITNESS
THOU SHALT NOT COVET

Note the presence of "Thou shalt not make unto thee any graven image."

Now open up any Catholic or Lutheran catechism and look up the Ten Commandments. (There's a copy of the relevant part of the Lutheran catechism here). The "graven image" thing isn't listed as one of the ten (it's considered commentary on the first commandment). For Lutherans and Catholics, the Second Commandment is "You shall not misuse the name of the Lord" (or more traditionally, "Thou shalt not take the name of the Lord thy God in vain"). But for Judge Moore, that's the Third Commandment.

The majority Christian view dates back to at least the 3rd Century C.E. and the teachings of St. Augustine, Bishop of Hippo. The radical Protestant view dates back to the Swiss reformers Calvin and Zwingli. For Calvinists, the radical second wave of the Reformation, veneration of statutes, particular statutes of the saints, was considered a "Roman" corruption of Christianity. Anti-Catholic bigotry aside, the Cult of the Saints quite clearly reflects the syncretic influence of the pagan religions and local religious practices indigenous to Europe prior to the coming of Christendom, not the "pure" Gospel of the early church.

Who is right, then? There are, in fact, well over six hundred (600) commandments in the Old Testament, though most of them pertain to a Temple-based worship and priesthood which no longer exists. Choosing only ten to retain is somewhat arbitrary, but it is traditional. The problem is: which words are "the" Ten Commandments? The words of the Bible cited as the source of the Ten Commandments, Exodus 20:1-17, Deuteronomy 5:6-21, do not neatly parse into ten commands, but in fact contain sixteen (16) imperative statements.

Asked which were the greatest commandments, Jesus mentioned only two (2): (1) Love God and (2) Love your neighbor as yourself. "All of the law and the Prophets hang on these two commandments." Matthew 22:40, see also Mark 12:28-31. A similar response is reported to have been given by Hillel, a famous Judean rabbi who was a contemporary of Jesus. "Love your neighbor" is not found at Exodus 20 or Deuteronomy 5, but rather is from Leviticus 19:18, but moreover summarizes the message of the Prophets. In another place, Jesus mentions six (6) commandments, five (5) of the original decalogue, plus "Love your neighbor": "Do not murder, do not commit adultery, do not steal, do not give false testimony, honor your father and mother, and love your neighbor as yourself." Matthew 19:18.

The one commandment which Jesus always named among the most important --"Love your neighbor as yourself"-- is not engraved on Justice Moore's monument.

The Eleventh Circuit's Ruling

After dispensing with some very lame evidentiary objections, the federal appeals Court examined the law underlying the district court's order. Federal courts take a very pragmatic approach to religious displays in public places, in which context plays the deciding role. This case wasn't even close to any gray area. The display is clearly intended to impose a religious view --a narrow sectarian view, at that-- and it is smack in the middle of courthouse where it cannot be avoided or go unnoticed.

Finally, the Court turned to Justice Moore's contention that he acted on behalf of the Supreme Court of Alabama and therefore was not obliged to agree with the federal court's view of the law, but rather had a duty to interpret the law as he understood it.

The Eleventh Circuit's institutional memory can recall the days when Southern governors would assert their oath of office as a defense against federal court orders mandating desegregation.

That, of course, is the same position taken by those southern governors who attempted to defy federal court orders during an earlier era. * * * Any notion of high government officials being above the law did not save those governors from having to obey federal court orders, and it will not save this chief justice from having to comply with the court order in this case. * * * when the time comes Chief Justice Moore will obey that order. If necessary, the court order will be enforced. The rule of law will prevail.

Update:

August 25, 2003.

Justice Moore's efforts to get a stay of the district court's ruling pending appeal, either from the Court of Appeals or the United States Supreme Court, have all been rejected. The deadline imposed by District Judge Thompson for removal of the two-ton monument (now known as "Roy's Rock") came on August 20, 2003, and went without compliance from the Chief Justice of the Alabama Supreme Court. As a result, the other ten associate justices of the Alabama Supreme Court voted unanimously to overrule their Chief Justice and direct their building manager to remove the monument. On Friday, August 22, 2003, the other justices also voted to suspend Chief Justice Moore and set a trial to determine whether he should be removed from office for violation of Alabama's judicial ethics rules.

Meanwhile, protesters gather at the Alabama Supreme Court building to express support for the suspended justice and prevent the removal of the monument.

Justice Moore rejects comparisons to George Wallace and thinks his "civil disobedience" should be compared to Dr. Martin Luther King, Jr.. Anthony Sebok, columnist for Findlaw's "Writ", a web publication of legal commentary, demolishes this comparison by reference to Dr. King's Letter from the Birmingham Jail. The ruling that the monument should be removed does not subject a disenfranchised minority to disparate treatment. Civil disobedience is the last refuge of the powerless, but Justice Moore abused his position of power to have the monument installed. Sebok contrasts Moore's dilemma with a more difficult problem: judges in the North who refused to enforce the Fugitive Slave Law in the years before the American Civil War. See: http://writ.news.findlaw.com/sebok/20030825.html.