Judge Roy Moore and the Myth of the Separation Clause

Chief Justice Roy Moore’s new book So Help Me God is a captivating and unflinching first-hand account of a man on the front lines of the battle between religious freedom and judicial tyranny. This Alabama Supreme Court Justice embodies the true definition of patriotism, inasmuch he has risked his career and reputation to stand by his oath of office and refuses to deny his allegiance to the Constitution and the laws of nature and nature’s God for the mere sake of catering to the frenetic, deep-seated anti-religious paranoia of the uber-secular left.

It was on June 9, 1993 that ACLU member Joel Sogol wrote to then-chief justice of Alabama Sonny Hornsby, threatening to sue anyone who continued the time-honored tradition of praying in court. After Roy Moore took office in 1994 and refused to bring a halt to the tradition, the ACLU stepped up their threats of suit over the prayer and, in addition, began hyperventilating over the Ten Commandments plaque Justice Moore had placed in his courtroom. At the beginning of the third month of Justice Moore’s first term of office on March 31, 1995, the ACLU filed suit in U.S. district court against him on the basis that he had illegally imposed his religious beliefs on others in the courtroom, denouncing the prayer as “a religious test.”

The ACLU apparently didn’t feel up to suing all 550 members of Congress and all nine justices of the U.S. Supreme Court who have always begun their daily proceedings with prayers. It may even be a sobering revelation to them that our very first president noted in his inaugural address, “no people can be bound to acknowledge and adore the Invisible Hand which conducts the affairs of men more than those of the United States.” Nevertheless, it is doubtful that such words would bear much significance to a pathetic, subversive gang of rogue lawyers who have nothing better to do with their time than to bully public officials out of acknowledging their creator and to throw childish temper tantrums over harmless little plaques.

In a priceless act of civil disobedience, Justice Moore erected a 2½-ton granite Ten Commandments monument in the rotunda of the State Judicial Building. Moore would later write in his book that “[t]he display of God’s law was not done to make any bold statement, to intimidate or offend anyone, or to push any particular religion. It was simply a reminder that this country was established on a particular God and His divine, revealed laws; it reflected the Christian faith of our founders.”

Flabbergasted, on Halloween 2001, the ACLU ganged up with Americans United for Separation of Church and State and the Southern Poverty Law Center to file suit over the monument. Demonstrating what loving people liberals can be, in a letter to the legal director of Americans United, Morris Dees of the Southern Poverty Law Center referred to Justice Moore as a “religious nut in partnership with a fanatical church.” (And showing how smart liberals can be, the letter was accidentally sent to Justice Moore’s attorney, Steve Melchior. Whoops!)

The case was set for trial on October 15, 2002. Less than a month after it ended, on November 18, 2002, U.S. District Judge Myron Thompson ruled against the Ten Commandments display, declaring it unconstitutional. In his ruling, Judge Myron stated: “[W]hile the Chief Justice is free to keep whatever religious beliefs he chooses, the state may not acknowledge the sovereignty of the Judeo-Christian God and attribute to that God our religious freedom.” Perhaps Judge Myron would be compelled to rethink his words if he actually bothered to read the Alabama State Constitution which Moore had sworn specifically to uphold, inasmuch as it reads in the preamble: “We, the people of the State of Alabama, in order to establish justice, insure domestic tranquility, and secure the blessings of liberty to ourselves and our posterity, invoking the favor and guidance of Almighty God, do ordain and establish the following Constitution and form of government for the State of Alabama” (emphasis added).

On March 2, 2005, the New York Times expressed its disapproval of similar displays in between the Capitol and the State Supreme Court in Texas, and in county courthouses in Kentucky, accusing the displays’ backers of not accepting the “separation of church and state” while explaining that “[t]he Establishment Clause of the First Amendment prohibits Congress from making laws respecting an establishment of a religion.” If nothing else, at least these circumstances have given liberals yet another excuse to evince their maniacal infatuation with the “separation of church and state,” a phrase which we are supposed to believe is somewhere in the Constitution.

If a liberal sneezed and you said “God bless you” he would begin spastically whining about the “separation of church and state.” To appreciate this situation from the perspective of the judicial supremacists, the ACLU lawyers and the New York Times editors, we will just have to pretend for a moment that a) the “separation of church and state” exists in the Constitution, b) Congress is somehow responsible for the placement of the Ten Commandments monuments, and c) the monuments in effect represent an establishment of a state religion.

To the contrary, however, the left’s beloved “separation of church and state” mantra originated not in the Constitution, but in a letter from Thomas Jefferson to the Danbury Baptist Association in 1802 (11 years after the First Amendment was incorporated into the Constitution) regarding their concerns that the Congregationalists may abuse their power to attain a favored position. Explicitly, Jefferson wrote: “[the] wall of separation between church and state…is a one-directional wall. It keeps the government from running the church, but makes sure that Christian principles will always stay in government.”

The self-styled progressive elites have typically justified their anti-Christian bigotry by insinuating that religion must stay away from government, and any case in which it does not is an irrevocable step towards theocracy. Their interpretation of the language of the First Amendment demonstrates how little understanding they have of its actual implications.

By including the establishment clause in the Constitution, the framers were preventing the prospects of theocracy such as that which the Pilgrims purportedly fled from in England before settling on the North American shores. However, there is a reason why Thomas Jefferson wrote in the Declaration of Independence: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness” (emphasis added). What Jefferson was taking into account was the imperative necessity of our leaders and authorities to recognize their inferiority to the divine laws of the solar system and their subordinance to a Higher Power, so as not to confuse themselves with that Higher Power and in due course assume a despotic, tyrannical precedence.

The functionality of our democracy is contingent upon the Hobbesian doctrine that man is inherently corrupt and therefore in need of some degree of governmental supervision. The notion of human fallibility is quintessential of the Judeo-Christian doctrines with which our founders specifically harmonized their vision of a free republic. The acknowledgement of that fallible nature is what distinguishes our system from communism – a system which presupposes that man is basically good, and therefore capable of upholding and preserving a utopian, Edinic society. It distinguishes our system as well from that of monarchism and fascism, both of which presuppose that there is such a thing as Divine Right, or human infallibility; that it is possible for a human leader to take on a godlike authority over his people and govern them in a flawless manner. But because our system recognizes that there is no such thing as human infallibility, our branches of power are balanced, and our leaders are appointed through a democratic process by which the majority of citizens decide who gets to represent them, and for how long.

Secularist liberals tend to accuse Christians of seeing things too much in “black and white,” yet they themselves have adopted a black and white perspective by declining to consider the fact that not everything boils down to the two options of theocracy and secularism. A system of government that is religious in nature does not automatically take on the form of theocracy. It does not mean that its subjects must be coerced into submission to a certain designated religious faith. Whether or not we as individuals decide to subject ourselves to personal dependence on religion, we must recognize that our freedom to do so or not do so at our own will is dependent on our democratic system, and our democratic system is dependent on religion.

It is on account of this brand of narcissistic judicial hubris, this denial of subordinance to a Higher Law that an innocent woman was allowed to be inhumanly starved to death recently, that activist judges have been able to recklessly redefine the institution of marriage, and that an unremitting fetal holocaust has been sanctioned by the highest levels of government for 32 years and counting. The more we forget that we are “one nation under God,” the more we will become “one nation under the State.” If this becomes the case, then our rights will become conditional and susceptible to abuse, rather than God-given and immune to meddling. As many could argue, resting our rights solely on the state is like building a house on sand. (Note to liberals: Please pardon the biblical reference.)

I apologize if I've misrepresented your views.

Not misrepresented, just mildly misstated (and certainly not deliberately). No need to apologize; this has been a busy thread and a long discussion.

I'll let you have the last word if you'd like to take a minute to correct that.

Nope, no need, but thanks. This discussion has already wandered rather far from its title topic; the link between legal definitions of marriage to Christian views of marriage was the last thread tying it in.

I'm attempting to bridge the gap between Americans who only know how to talk about law in terms of their own religious ethics, and the restrictions we have placed in the interest of representational government on our motivations for law.

Yep, and you're doing an excellent job of it. The same-sex marriage discussion was a sidetrack; it got started because I was asked what I thought about it and I answered. We're not going to resolve the issue here and it's a distraction from your primary argument.

That families have an interest in protecting the limited resources government offers them, that Americans are committed to natural family structures, that there are good arguments in favor of encouraging natural family structures are all rational arguments against diluting or corrupting our official view of the marriage relationship.

Yes, they are. I continue to disagree that recognition of same-sex civil marriages will in fact dilute or corrupt that view. But I certainly don't think that anyone who disagrees with me is automatically foolish or evil, and you are neither.

This discussion has already wandered rather far from its title topic; the link between legal definitions of marriage to Christian views of marriage was the last thread tying it in.

On the contrary. Even if we can't apply religious doctrines in our laws per se, we do not want to force Americans to pay for, or honor practices which violate their beliefs. It's even more important to respect the culture and tradition represented in marriage law when religion isn't available to justify it. If Moore can't point to the 10 commandments and say that they are the moral underpinning of our laws, all that says is that we have to bring rational arguments to explain them. If this becomes an excuse for mob rule or anarchy, which the latter I claim the marriage modification effort has become, then it only plays into the hands of the religionists who argue that without the 10 commandments we become lawless. In other words, if we can't refute the argument that without legal application of the 10, we're subject to the 10,000 (often conflicting) laws, then where is the victory in that? Freedom is not license. Freedom requires even greater responsibility.

I think the special interest groups on the left are trying to say that because Christians believe in marriage, it's unconstitutional. Christian ethics lead to laws that are arguably common with a fair amount of American law, but that doesn't mean that we'll reject them. But if our arguments about which laws are constitutional or not appear to suggest that any law that may be Christian is subject to such scrutiny, then the cries for theocracy will only get louder.

I continue to disagree that recognition of same-sex civil marriages will in fact dilute or corrupt that view [of marriage]

If marriage is defined as a sacred and traditional bond between man and woman based on religious doctrine common to most Americans and western civic tradition common to most other cultures, it really has no bearing on other relationships. If we change its meaning on our lawbooks, it still becomes something else. A simple change of law cannot redefine the meaning Americans confer on marriage by culture, tradition, religious faith, and by economic blessing. But if we do continue to allow this, we will be saying to children, "The traditional family unit is not special; it has no particular advantage over any other family unit." Marriage will in effect, cease to be useful to America. I'll be the first to demand that tax breaks given to married couplings (or tripplings, or quadruplings) be rescinded.

What's more disturbing to imagine is the postings of court cases themselves as new religious laws disguised as just that -- secular laws. When before we all knew what adultery was, I suppose some new age law, with religious connotations, will take its place. No need for that stuffy old "husband" or "wife" terminology. That's just a vestige of the patriarchy. The goddess is afoot, and we've smashed the patriarchy, right? Will adultery cease to exist? Just because a law is not present on a school room wall, doesn't mean that its absence isn't a religious law. If one's religion says that the word 'adultery' is meaningless, that's still religious doctrine. I present you the empty spot on the schoolroom wall with the "no such law available" implication as being "a religious law."

But I will tell you one thing: mothers will still have to raise children in demolished homes because of adultery, no matter how hard the state works to abolish the natural law of matrimony. Fathers will still abandon their natural responsibilities. Adultery and abuse will still break up natural families. But the law will become less and less helpful as an instrument in our country for assisting natural families by requiring personal responsibility. That empty place on the school walls where the 10 commandments used to be and the new "no such rule by fiat of the goddess" religious law will still tell children: there is no such thing as natural marriage.

Even if we can't apply religious doctrines in our laws per se, we do not want to force Americans to pay for, or honor practices which violate their beliefs.

And as I've said, the only way to accomplish that is to make taxes voluntary. Tax funds are simply not distributed in accordance with the religious beliefs of the taxed. There are people who oppose military force of any kind for religious reasons; nobody makes sure their specific tax dollars don't go to the DOD, or even that tax dollars are allocated to the DOD in proportion to the number of nonpacifists among the taxpayers. I spend a lot of time in a local national park, paid for in part by the tax dollars of people who don't believe the government has any business maintaining such lands. You can think up lots of other examples yourself, I'm sure.

There will always be problems of this sort as long as there are taxes; marriage isn't a special case. (Similar problems infect public education, which can't possibly be performed in a way that pleases everyone who pays for it; the only way to change that would be to privatize the schools.) Either privatize everything -- which in this case would mean getting the state entirely out of the business of recognizing marriages -- or get used to the fact that there's always going to be somebody paying for something of which they disapprove.

This is why I initially suggested that you keep in mind the question whether any positive legal benefits should be conferred on civil marriages at all.

If marriage is defined as a sacred and traditional bond between man and woman based on religious doctrine common to most Americans and western civic tradition common to most other cultures, it really has no bearing on other relationships. If we change its meaning on our lawbooks, it still becomes something else.

Then I'm afraid I have bad news for you: it's already become something else. Civil marriage is not defined in terms of sacredness, tradition, or religion.

Religious marriage is defined in such terms. And private religious organizations don't have to recognize civil marriages as 'religiously satisfactory', as for example the Roman Catholic Church doesn't have to recognize civil marriages or divorces for purposes of its canon law. Civil marriage is already not the same thing as religious marriage.

LOL, you just can't help yourself.

Anybody who still takes you seriously can compare your opinion with Kennedy's easily enough:

[W]hat two people do in the privacy of their home isn't any of my business in this Constitutional Republic of ours. --jwalsh07

[A]dults may choose to enter upon [a homosexual] personal relationship in the confines of their own homes and their own private lives and still retain their dignity as free persons. . . . The liberty protected by the Constitution allows homosexual persons the right to make this choice. -- Justice Anthony Kennedy in Lawrence v. Texas

If you think you disagree with the result in Lawrence, then you're either not reading very well or not writing very well. I don't really care which it is (and it may be both); you're clearly not worth any more of my time.

You seem to think Mr. Walsh wants the judiciary to legalize sodomy. That would be a false assumption. In fact, I don't want the judiciary to do that either (particularly on the ludicrous and potentially far reaching and robe empowering grounds Kennedy penned while seemingly on some mind altering substance), and as a policy matter, I think I am the only poster on this forum who openly favors legalizing gay marriage as a policy matter.

I hope that helps. Oh yes, Mr. Walsh is one of the smartest folks on this forum, and a fine writer. Cheers.

Chuckle, chuckle. You fancy pants lawyers always get snippy when a blue collar guy spanks you in your own specialty.

The only judge I have ever seen this guy be critical of is Roy Moore. He has gone out of his way to justify other judges like O'Connor and Kennedy when they use international law by trying to compare it to Scalia using English common law - the basis for our laws (as if the 2 are even comparable). He's also constitutionally smarter than lawyers like Scalia, Marc Levin, Jonathan Turley, and Orrin Hatch. I've noticed the same arrogance in many lawyers. It must be the law schools that do it to them.

My casting a vote to keep my state government out of peoples bedrooms does not equate to the oligarchial federal courts issuing opinions rife with lunacy and abridging powers that rightfully belong to the people through their elected representatives.

Right. So you agree with the result but you don't think it should have come from the Supreme Court. That's what I said. If you don't want the decision to come from a state court either, this is the first time you've suggested as much in this thread.

Civil marriage is already not the same thing as religious marriage.

You'll note well that I wouldn't be here, associating with my fellow right wingers if I too strongly disagreed with them. Usually it's a semantic argument that I'm having with their justification for various positions. I'd sooner blame their utter frustration with post-modernism than any particular bent on infringing on others' rights. Like them, I recognize the legal authority of various American officialdom, but I reserve the right to withhold my approval. We hold certain truths to be self-evident. Mother nature can teach us much more about marriage than a supreme court justice. The same-sexers want something from us that we don't want to give. They don't need it, it's not listed in the bill of rights or even covered under the "pursuit of happiness." But still they want it, they crave it.

The question I have for you is more fundamental. Would you rather have justices appointed who know what I'm talking about, or ones who prefer the Roy Moore point of view. The choice is the left's. The more they press, the more religious the right will become. It's a simple physics: for every action, there is a reaction.

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