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Judge’s Ten Commandments case headed to Ala. Supreme Court

GADSDEN, Ala. (BP)–With a reprieve from the Alabama Supreme Court, County Circuit Judge Roy S. Moore does not have to worry about violating a February court order to take down the Ten Commandments — yet.

In the latest development of Moore’s case to keep his hand-carved Ten Commandments hanging above the Etowah County bench in Gadsden and to continue saying a prayer before jury selection, the judge has postponed defying the original court order because of a stay granted Feb. 18.

Montgomery County Circuit Judge Charles Price ruled Feb. 10 that Moore’s display of the Ten Commandments is an attempt to promote religion and therefore unconstitutional. This latest ruling came after an appeal by the American Civil Liberties Union of Price’s Nov. 22 decision to ban Moore’s prayers in court but allow the Ten Commandments.

Moore is appealing both of Price’s rulings to the Alabama Supreme Court. The Supreme Court granted a stay Feb. 7 on Price’s ban of the prayers, and in response to a plea by the Alabama attorney general’s office, the court granted the recent stay. Moore was originally given until Feb. 20 to take the Ten Commandments down.

“I’m not going to take them down,” Moore said Feb. 14. “This is not just stubbornness. I think it is the first duty of every Christian to acknowledge God.”

Gov. Fob James put Alabama in the national spotlight with his bold statement to guard the Ten Commandments plaque in Moore’s courtroom with force if necessary. But in the midst of national praise and condemnation from religious and legal scholars, James has no intention of backing down on his promise.

“Oh, he’s very serious,” said James’ press secretary, Alfred Sawyer, Feb. 13. After making the comment to Alabama Baptists and state legislators Feb. 5, James appeared in live interviews on “CBS This Morning,” Fox News Network and CNN. “He has every intention of using the National Guard to protect the courtroom from anyone coming in and taking the Ten Commandments down.”

Although Moore appreciates the governor’s support, he would not comment about James’ resolve to use government troops, because the Ten Commandments issue is not resolved. He noted, however, the debate over using the National Guard to defend the Ten Commandments could come down to a power struggle between the state’s top judicial branch and executive branch.

Alabama Attorney General Bill Pryor, who filed Moore’s original case in state court in 1995, said he does not anticipate any confrontation between the National Guard and Judge Price’s order because he does not expect the Alabama Supreme Court to rule against Judge Moore. Pryor would not comment on what legal arguments he would use to justify calling in the troops to defend the Ten Commandments if necessary.

Rather, Pryor is counting on the Alabama Supreme Court to consider Marsh v. Chambers as the precedent to follow in Judge Moore’s situation. “I think when the court looks at that case, this issue is very simple,” Pryor said.

That 1983 Supreme Court case allowed the Nebraska legislature to open its daily sessions with a prayer. However, some First Amendment scholars disagree that the Nebraska case applies to Moore’s legal battle. Charles D. Cole, professor of constitutional law and civil procedure at Samford University’s Cumberland Law School in Birmingham, Ala., noted the Marsh case applied to a lawmaking body made up of adults who could choose to be present for the prayer. Furthermore, Cole noted, the Supreme Court justified its Marsh decision on the framers of the Constitution, saying it was constitutional to open the legislative session with a prayer.

“But the framers were not talking about, and they never considered, prayers in court,” Cole said. “That’s a stretch.”

Other church-state experts refer to the legal basis for the 1991 11th Circuit decision that banned a North Carolina judge from opening court with prayer, or the 1993 Fourth Circuit ruling against displaying the Ten Commandments in court.

Cole said he considers the display of the Ten Commandments to be a violation of the First Amendment because the nation is pluralistic and tolerant of all religious beliefs.

“I understand our separation of church and state to mean the state stays out of the church’s business and the church stays out of the government’s business,” Cole said. “I think persons going in to Judge Moore’s court would feel compelled to bend to his beliefs,” he added, noting he felt uncomfortable when he walked into a courtroom in Brazil where a crucifix was hanging above the judge’s bench. “I was not accustomed to a government-established religion.”

Moore, however, does not believe he is establishing a religion but rather upholding his duty to acknowledge God. In fact, by not acknowledging God, he said he would be establishing a religion — atheism.

“Society in the 1700s defined religion in one way — as duties to God,” Moore said, noting the Supreme Court opens its sessions with “God save this honorable court” and Congress begins with prayer. “To say a circuit judge cannot acknowledge God doesn’t make sense.”

    About the Author

  • Laurie A. Lattimore