The Ten Commandments in Alabama
Lubet, Steven, Constitutional Commentary
This brief essay approaches the well-known "Alabama Ten Commandments" controversy from the perspective of interest group strategy. The situation, of course, has been endlessly analyzed in both legal and political terms, each side staking out a determined position regarding the display of the Decalogue on a courtroom wall. As a strict separationist (indeed, as a prototypical card-carrying ACLU loyalist), I propose here to explore the issue from a slightly different angle: Why is it worth fighting over?
To absolutists, of course, everything is worth fighting over, if only in the name of the mythic slippery slope--allow the Ten Commandments today and next week we will have to worry about a national catechism! But absolutism has its costs in terms of moral, political, and actual capital. Every time the Ten Commandments are banned from the walls of a public building, the religious right is energized and moderates are alienated from the civil liberties camp. Given that price, one has to ask if the principle involved is worth the cost of victory, much less the possible consequence of defeat.
Thoughtful writers such as Stephen Carter,(1) Michael Perry(2) and Stephen Presser,(3) have called for increased receptiveness to religious values in public life. Certainly, the constant stream of Establishment Clause litigation is regarded by many believers as a form of secular tyranny.(4) It is useful, therefore, to consider whether opposition to posting the Ten Commandments can be justified on something more than reflexive grounds.
Judge Roy Moore, of Etowah County, Alabama, is determined to keep the Ten Commandments hanging on his courtroom wall. Governor Fob James supports him to the hilt, to the point of threatening to call out the National Guard if that's what it takes to prevent the judge's carved wooden plaque from being removed. Said Governor James, "the only way those Ten Commandments ... [will] be stripped from that courtroom is with the force of arms."(5)
Backing for the Ten Commandments has come from every quarter. Thousands of Alabamans rallied behind Judge Moore, and statements of editorial encouragement have appeared from Massachusetts to California. I have located at least two "Support Judge Moore" web pages, and there are probably many others that my modest Internet skills failed to discover. Decalogue plaques have lately been mounted in public buildings in North Carolina, South Carolina, and Texas, with others promised or promoted in Michigan, Wisconsin, and elsewhere. Not to be outdone in their support for the Judeo-Christian tradition, the United States House of Representatives overwhelmingly passed a resolution endorsing the display of the Ten Commandments in every public schoolroom and courtroom in the nation.(6)
The Alabama Supreme Court neatly sidestepped the issue, dismissing (for lack of standing) a lawsuit between Judge Moore and the American Civil Liberties Union.(7) Still, it seems certain that the issue will reemerge, as religious groups have made Judge Moore a national symbol in their campaign to reemphasize religion in public life (and in public buildings).(8)
The lines are clearly drawn. Liberals cite cases such as Stone v. Graham(9) to show that the Decalogue display clearly violates the separation of church and state. Conservatives, on the other hand, are eager to overturn the last 30 years of church-state jurisprudence, using the Ten Commandments case to show how foolish and coercive (in their view) the law has become. A "Religious Freedom Amendment" to the Constitution, narrowly defeated in the House of Representatives but sure to be reintroduced, would guarantee the people's right to "recognize their religious beliefs, heritage, or traditions on public property."(10)
Religious activists regard the Ten Commandments as virtually non-negotiable, arguing that the ethics of the Decalogue are accepted by Christians, Jews, and Muslims. …