November|December 2003



ROY MOORE CAMPAIGNED TO BE CHIEF JUSTICE of the Alabama Supreme Court as the "Ten Commandments Judge." In 2001, a few months after he was elected, he made it clear what that meant. He installed a new centerpiece in the state's judicial building in Montgomery: a 5,280-pound granite monument chiseled with the commandments from the King James Bible. His goal was "to restore the moral foundation of our law," which required recognizing "the source of that morality." In a move Cecil B. DeMille would have appreciated, Moore had the installation filmed by an evangelical Christian organization. Almost 50 years earlier, DeMille had dispatched Charlton Heston and other stars of The Ten Commandments to dedicate granite monuments in courthouses across the country.

It took two years for a lawsuit challenging Moore's shrine to be resolved in federal court. But this August, the 11th Circuit gave him a final order to remove it on the grounds that it violated the First Amendment's Establishment Clause. For the monument's opponents, who believed that it directly breached what Jefferson termed the "wall of separation" between church and state, the case against "Roy's Rock" may have seemed like a slam dunk. But while Jefferson's famous wall is often discussed in civics classes and on talk shows as one of the founding tenets of our republic, the Supreme Court didn't adopt his view of the Establishment Clause until 1947—and that view has never been wholeheartedly accepted by the justices.

In the years following the 1947 decision, the clause was understood by the court as preventing the government from promoting religion, by setting up an official church or by advancing the views of a particular faith. In 1985, the Supreme Court struck down an Alabama statute that let public schools provide a minute of silence for "meditation or voluntary prayer." Writing for the majority, Justice John Paul Stevens stated that "the individual freedom of conscience protected by the First Amendment embraces the right to select any religious faith or none at all." The Alabama statute, the court ruled, breached the church-state wall because the observances it allowed were not for a "secular purpose."

Writing in dissent, however, Chief Justice William Rehnquist declared that no such wall exists. In his view, the Constitution forbids the establishment of a national religion because the Founders feared something along the lines of the Church of England. Though he believes the Constitution prohibits discrimination between religious sects, he rejects the "secular purpose" test, arguing that the Establishment Clause does not require the state to keep religion out of public life.

In the 18 years since Rehnquist's dissent, the Supreme Court has increasingly adopted the position of its chief justice and supported government accommodation of religion. It has let Pawtucket, R.I., display a life-size Nativity scene near Santa and his reindeer at Christmas and allowed Allegheny County, Pa., to put up a menorah and a Christmas tree side by side. Three years ago, the court disallowed the practice of delivering a prayer over the public address system before each home football game at Santa Fe High School, which it said empowered "the student body majority to subject students of minority views" to messages that were improper under the Constitution. But the trend toward accommodation remains clear.

MOORE SEEMS TO HAVE ENJOYED THE LIMELIGHT far more than he would have liked being accommodated. "To do my duty," Moore intoned to a crowd of supporters at the Montgomery courthouse in August, "I must obey God!" Before the monument could be removed, it took a unanimous vote of the eight other Alabama justices (all but one Republicans, like Moore) and the hiring of a moving crew from Georgia, because no Alabama company would sign on.

It's not surprising that Moore's disregard for that other cornerstone of American democracy—the rule of law—was eventually overcome. What should surprise most Americans is how easily Moore could have found an acceptable compromise, had he been so inclined. He could have, for instance, presented the commandments as one source of law along with others throughout history. The home of the U.S. Supreme Court itself does just that. The building's east pediment depicts Moses holding two tablets as the central figure in a tableau of lawgivers that includes Solon and Confucius. Working in the 1930s, the courthouse's designers likely assumed, as did the court, that this was a Protestant country that tolerated other sects and was on firm constitutional ground as long as the government didn't institute or endorse a religion. The Protestant establishment may have lost its place, but the Rehnquist Court's America remains unquestionably religious.