The Ten Commandments Lawsuits: Successfully Eroding the Free Exercise Clause of the First Amendment

The Ten Commandments Lawsuits: Successfully Eroding the Free Exercise Clause of the First Amendment
by Rachel Alexander, Columnist and Legal Analyst

August 28, 2003

Columnist Rachel Alexander Groups like the ACLU claim they are filing lawsuits against the appearance of religion in society in order to prevent violations of the Constitution's Establishment Clause. In reality, their lawsuits are taking away the right to the free exercise of religion guaranteed by the First Amendment.

The ACLU and Americans United for the Separation of Church and State assert that they filed lawsuits against Alabama Chief Justice Roy Moore out of concern that a monument of the Ten Commandments located in the Alabama state courthouse violated the First Amendment’s prohibition against any law respecting the establishment of religion. But the monument has nothing to do with establishing religion. In reality, their lawsuits aim to prohibit Moore from exercising his First Amendment right to the free exercise of religion, which is an equally important clause in the First Amendment.

So far, the federal courts have sided with the ACLU, ordering Justice Moore to move the monument. Justice Moore has steadfastly refused, even though a federal judge threatened him with fines of $5,000 a day. On August 22, 2003, the Alabama Judicial Inquiry Commission suspended him for refusing to comply. In order to sue Justice Moore in the first place, the ACLU found some local attorneys who were willing to be clients and claim to be victims of discrimination, alleging that their clients could not get a fair trial in Justice Moore’s courtroom because of the monument. Of course, the plain truth is that whether there is a monument reflective of our nation’s foundational history present in the building or not has nothing to do with Justice Moore’s views and rulings. If Justice Moore believes in the Ten Commandments and considers them part of the moral code of our country, he is going to believe that regardless of whether there is an obscure piece of art symbolizing them nearby.

If the ACLU and other organizations that have been historically hostile to religion disagree with Justice Moore’s views, they need to organize voters to remove him from office democratically. Using the court system to remove a monument that is symbolic only, and probably not noticed by 90 percent of the people who come through the court building each day, is not a solution, it is harassment. However, the ACLU knows it can’t win democratically and fairly, because, as they assert on their website, it is well known that the reason Justice Moore was elected was precisely because of his convictions, which include putting the Ten Commandments on the wall inside his courtroom and allowing clergy to say a prayer before trials.

What the ACLU refuses to acknowledge is that it has successfully sterilized religion from society to such a degree that a backlash has emerged. No one really believes that an obscure monument of the Ten Commandments represents government establishing one religion and prohibiting others, which is what the First Amendment's Establishment Clause specifically forbids - and actually it specifically forbids Congress only. The U.S. is not China or Iran, or even one of our fellow Western Democratic countries that recognize one religion as their official faith. People are beginning to realize that religion has been so stripped from our society by groups like the ACLU and the Southern Poverty Law Center that the other half of the First Amendment’s religious clause - the half the ACLU ignores, the Free Exercise clause - is being infringed upon by the government. Ever notice how the ACLU never quotes the First Amendment, which says in regards to religion, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” The ACLU pretends that is protecting constitutional rights, but in reality, it would prefer it if people didn’t know what the Constitution actually said. If people actually read the Constitution, they might find that they disagreed with the ACLU, and that the ACLU’s pretense of supporting “rights” was actually a sham. After all, where in the Constitution does it support the defense of men to molest boys, one of the ACLU’s favorite legal causes?

The ACLU’s erosion of religion from society has been successful because it couches its work in Orwellian terminology. In a prior victory against Justice Moore, ACLU attorney James Tucker called the ACLU’s successful erosion of the First Amendment’s Free Exercise Clause a victory for religious rights: “This ruling is a major victory for the Constitution, the rule of law, and for religious rights and liberties in Alabama.” Gradually stripping the people of their constitutional right to the free exercise of religion is cleverly referred to as “the First Amendment separation of church and state.” While “separation of church and state” sounds good in theory – never mind that it is not even in the Constitution - and would be something to be concerned about in a country where the government told people what they can and cannot believe, it is irrelevant here in the U.S. People here are free to choose different religions, and do so zealously. If anything, our public schools and employers discourage us from mentioning or observing religion. If a “separation of church and state” is needed, it is needed to get the government out of telling us we cannot practice our religions.

Three judges from the Court of Appeals for the Eleventh Circuit claimed in a 50-page ruling against Moore that if they agreed with him, he would put up religious paintings and quotes, and that judges everywhere around the country would put up Buddha statues, Menorahs, and crosses. The absurdity of this logic is all too obvious. Does anyone really believe that judges everywhere will decorate their courthouses with religious symbols? Of course not, there may be a few judges who do, but they are by far in the minority. And thanks to our wise Founders, we have a clearly written First Amendment that prohibits government from establishing one religion; no judge would be able to instill his religion upon people who use his courthouse. By forcing judges to remove any religious symbols from their workplaces, the ACLU is effectively forcing them to promote an image that they are devoid of religion. Since judges are free to adorn their courthouses with non-religious decorations, the impression people get who visit courthouses is that the judges have many likes - because they’ll see their Monet paintings and domestic violence pamphlets - but religion isn’t one of them. The smarter people, who are aware that 96% of the population believes in God and demonstrate it by wearing crosses, sporting religious bumper stickers and wearing WWJD wristbands, will wonder if religion is being censored by the government.

The reason the ACLU has gotten away with its quest to sterilize religion from society is because of sympathetic justices who have bought into their Orwellian arguments. In 1971, Chief Justice Burger in Lemon v. Kurtzman made up the “Lemon test,” which took a “living Constitution” interpretation of the First Amendment, in order to pretend that the First Amendment was more prohibitive of religion than it really was. Ignoring the Founders’ intent when they drafted the First Amendment, as well as the plain language of the First Amendment, Burger made up three criteria that lower courts would have to consider when deciding whether religion’s appearance in society violated the First Amendment. From then on, any occurrence of religion in society that was remotely related to the government would be analyzed based on whether it had a secular purpose, whether the primary effect advanced or inhibited religion, and whether it fostered excessive entanglement with the state. Of course, since our government is so large now, and pervasive in so many areas of our lives, from tax breaks to public agencies to obscure regulations, that virtually any reference to religion, unless it is within your own home – and even then, watch out if you run a home business - can be attacked by the ACLU under this impossibly vague test and purged from society.

Currently, Supreme Court Justice Sandra Day O’Connor’s “endorsement test” is frequently used as the gauge of whether religion in society should be eliminated, since O’Connor is often the swing vote on the court between the liberals and the conservatives, resulting in her authorship of many of the court’s opinions. Like the Lemon test, this test is much more prohibitive of religion than the First Amendment itself, and can easily be satisfied to “prove” that anything remotely connected to religion is “unconstitutional.” As long as the ACLU can assert that a Ten Commandments monument “endorses religion,” as open to interpretation as that is, they can win and get it removed. The key is playing on the emotions of the judges to make them feel guilty that perhaps as much as four percent of the population is “offended” by the presence of religion. It is much easier to persuade a few judges based on an emotional argument, than get a constitutional amendment passed expanding the Establishment Clause to restrict religion in society.

So what is the solution? For too long, conservatives have neglected the legal profession, particularly the judiciary. While Justice O’Connor was making inroads as one of the first women to attend law school and become a judge, conservatives were telling women to stay at home and raise children. Now Justice O’Connor is in charge of deciding how much religious freedom our society is entitled to, not the Founders and our Constitution or even a majority in society. While studies show that is better to have a parent in the home for the children, there has to be some sort of middle ground, or the children will lose their rights outside of the home. Over the past 40 years, the legal profession has been dominated by liberals who have bought into the ACLU’s pretense of defending “constitutional rights.” Most law schools have only two faculty members who identify themselves as conservatives. Consequently, Justice Moore cannot expect much support from the federal judiciary arguing that the revisionist interpretation of the First Amendment’s Establishment Clause has encroached on the First Amendment’s Free Exercise Clause. Years of Orwellian doublespeak about “rights” by groups like the ACLU has paid off, and judges would rather risk violating the Constitution than violate the ACLU.

For an excellent discussion of why the First Amendment should not apply to the states, which this article did not address, read Bruce Walker's article located here.

Rachel Alexander is a former Assistant Attorney General for the State of Arizona, and is currently an attorney for GoDaddy.com in Scottsdale, Arizona. Go Daddy is the No. 1 registrar of net new domains and a provider of complementary products and services. The viewpoints expressed in this column are not the viewpoints of GoDaddy.com nor its affiliated companies.

Miss Alexander's home page is The Intellectual Conservative , which has numerous talented writers from whose talents you can enjoy - or complain about. This article originally appeared on 24 August 2003.

Rachel Alexander can be reached at rachel@american-partisan.com

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