WASHINGTON - Alabama's Chief Justice, Roy Moore, as been suspended for defying a federal court order to remove his stone monument to the Ten Commandments from the state Supreme Court building.
Judge Moore answers that American laws are based on the biblical injunctions, which is loosely true but hardly a compelling argument. The law could be based on the collected thoughts of Tomas de Torquemada, but it would still be illegal to erect a statue of the Grand Inquisitor if the U.S. Constitution banned such a tribute.
Which brings us to the Chief Justice's second and more substantial point -- does the Constitution ban the monument? The turbulent judge says no, the Constitution grants no jurisdiction to the federal bench in this, a state matter.
He is taking his case to the U.S. Supreme Court, but legal analysts say he will get no joy there. They are probably right, for the First Amendment has for the past two generations been interpreted as guaranteeing a near-total separation of Church and state. It seems pretty clear that this forbids the 2,400 kilogram monument that Judge Myron Thompson of the Federal District Court describes as "an obtrusive year-round religious display."
[. . . .] at bottom the judge is right; it is, or should be, none of Washington's business. The relevant clause of the First Amendment reads: "Congress shall make no law respecting an establishment of religion" -- that's it.
Why the stark and studiedly neutral word "respecting" if the clause was intended to separate Church and state always and everywhere within the United States. Why did the Founding Fathers not write: "No government -- federal, state or local -- shall take or allow any action that tends to establish religion"?
The reason is that this was not what they intended, and it is not what the words say. A people whose claim to self-determination rested on certain inalienable rights granted by the Creator is not one that envisaged government expunged of religion.
The historical context of the late 18th century and the words themselves make plain that the clause was intended not merely as an insuperable obstacle to the imposition of a national religion, although it certainly is that. But it was also a guarantee of state sovereignty -- a constitutional barrier preventing the federal government from interfering if a state chose to establish a religion. If the people of Massachusetts, for example, decided to adopt state presbyterianism, the establishment clause proscribed federal interference -- which is pretty much Judge Moore's point. A guarantee of state freedom in the matter of establishment was a prerequisite of ratification in some parts of New England.
The trouble is, it really doesn't matter what the establishment clause was originally for; it is now widely regarded as the foundation of an axiomatic separation of Church and state, and nothing will change that for the foreseeable future.
