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 can see dangers that are enormous if we ignore the law as intended and allow arbitrary political decisions because they are thougght of as fair by some.

I need more than that. I need to hear you admit that the right could undo limits on government power in order to accomplish its victory over the left's attacks on fair use of religious pageantry in government.

What I'm arguing is that this is not a one way street. The goal is to protect freedom. In doing so, we must be extra vigilant that we not dismantle any freedoms we already have in defending those that are under attack.

We can find mutually satisfying solutions to the problems we face. The constitution is a model of appropriating just the right amount of specificity (being just articulate enough) to not allow too much power for the government.

We can do the same in our battle to protect our culture and our freedoms. I think a major difference between my point of view and the Christian right's is that I don't believe government is a tool for solving the problems we face with loss of culture and moral clarity as a society. The right says "That's the way it always was (as far as we're concerned) and anyhow, we can't figure out how to do it any other way."

But government never was the source of ethical clarity in America! It is the people. And today our problems with ethics are reflective of our own failings as citizens, or citizens who seem to have bought into the French notion of moral relativism.

The 'discrimination' portion of this statement is remarkably similar to the argument the SCOTUS rejected in the Equal Protection portion of Loving v. Virginia: that Virginia's anti-miscegenation law didn't 'discriminate' on the basis of race, because it applied equally to blacks and whites and imposed the same penalties on each.

That would be false. Race baiting doesn't win you any points. Marriage has always been the union of one man and one woman in America whether you like it or not. When the government changes that meaning to one white man and one white woman, they abuse the meaning of the word just like you would by changing it to mean the union of two people. Words and sentences have meaning.

(Just as, according to Anatole France, one of the majesties of the law is that it equally forbids both the rich and the poor to sleep under bridges and beg for bread.) The SCOTUS didn't find that very convincing.

Great!

However, the Equal Protection Clause isn't what's fundamental here anyway;

Of course not because you and your fellow travelers can not make a case that marriage violates the clause even looking deep into the penumbra. Any man or woman can marry any indivdual of the opposite sex according to the parameters of the state. To find discrimantion there, you really have to twist the meaning of words and that's exactly what activists like you do. You find rights and discrimination where none exists as long as finding them advances your particular ideology.

it's the Due Process Clause (as you implicitly acknowledge in your remark about liberty interests; that's where those are currently adjudicated). And under current Fourteenth Amendment jurisprudence (with which I realize you may not agree), the right to marry is not a 'liberty interest' but a fundamental right, state interferences with which are subject to strict scrutiny.

Marriage is indeed a fundamental right and Congress has defined it as the union of one man and one woman in various acts through the ages with SCOTUS upholding it as constitutional. And indeed it is because nobody's rights are abridged. Special rights have just been granted in CT to same sex couples who can now avail themselves of civil unions. The law is patenetly unconstitutional because it is written for one group of people while excluding many others with no rational basis. But hey, who cares it's the ideology that counts.

That fact is important for another reason. I realize a lot of people have a sense that 'getting married' somehow confers a societal blessing on a couple and therefore sounds like approval of their marital union. That's probably true of religious marriages. However, if the (civil) right to marry another unmarried consenting adult really is a right, then exercising it doesn't require -- and therefore doesn't involve -- any societal approval of one's choice of spouse.

Except that in order for a right to be recognized as a "fundamental right", that right has to be grounded in the history and traditions of America. The history and tradition of American marriage is one man, one woman. As for your argument that the "right to marry" is somehow an absolute right, I can just smile. You know that there are no absolute rights.

I think that same-sex couples are entitled to precisely the same legal recognition and protection as opposite-sex couples, up to and including civil marriage (note that I didn't say 'civil unions' or 'domestic partnerships'). While you're certainly entitled to think that there is no basis for constitutional nor historical basis for imposing it.

I've already made it quite clear that you can think what you want. What you and activists courts can not do is change the meaning of words nor the "history and traditions" of this country for your own ends and call it constitutionally grounded.

I think there was a Constitutional basis for it even before Lawrence (as an extension of the fundamental right to marry), but Lawrence makes the argument much easier. Again, though, I realize that you probably disagree with Lawrence and won't find an argument based on it very compelling.

Absolutely correct. Kennedy's holding in Lawrence was comedy. It was a simple case of equal protection turned into judicial mischief by Kennedy and his transcendent liberty interests. Scalia tears it apart in his dissent much better than I can. But suffice to say that nowhere in Lawrence does the court declare homosexual sodomy to be a fundamental right or a fundamental liberty interest which kind of kills your argument here dead.

Here's the skinny of it anyway. Married couples enjoy all sorts of legal protections, some of which even involve due process rights directly (the two spousal testimonial privileges, for example), generally for the purpose of protecting the privacy of their relationship from unwarranted government intrusion. Because Lawrence was decided on the basis of a liberty right to enter into and maintain an intimate relationship with a partner of one's choice, it indicates that same-sex relationships deserve the same sorts of privacy protection (again including those due process rights) as opposite-sex couples as far as the Constitution is concerned. (It also means that laws positively forbidding legal recognition of same-sex unions in any form are unconstitutional from the get-go.)

Undoubtedly Kennedy is trying to accomplish just what you descibe here bu he didn't go quite that far in Lawrence. If he had, he would have simply stated that their was a fundamental right to sodomy. That he didn't go that far doesn't mean that he didn't want to but the fact is that he didn't.

That gets us to a degree of legal recognition for same-sex civil unions. At that point, the Equal Protection Clause indicates that the law can't discriminate between same-sex and opposite-sex unions by giving them 'separate but equal' status; civil marriage has to be civil marriage, and that's that.

Heterosexual marriage is non discriminatory, civil unions confined to same sex couples while excluding blood relatives is discriminatory. You have it exactly backwards.

I don't expect you to accept that argument, and of course I don't dream for a moment that I've given an adequate summary of it in this post. Nevertheless I think I've said enough to show that there's some Constitutional basis for my opinion.

There is a Constitutional basis for sticking a scissors in the neck of full term babies and sucking their brains out, or so they tell me, so you don't have to convince me just how activist the courts can be. Believe me, I understand it perfectly.

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