This whole affair has been a petty, nasty little sideshow, which has lead to all sorts of pointless conversations. In short, its the perfect August news story, and its resolution is the perfect send off for this wretched, foul month.
On the one hand you've got Justice Moore, a proselytizer and a demagogue who snuck his relatively large and ornate looking Decalouge into his courthouse under cover of night couple of years ago explicitly as a message to the non-believers, and not as some anodyne statement of the importance of Judeo-Christian morality to the Anglo-American legal tradition as he sometimes now half-heartedly claims. The monument is invariably described by those aghast by it as "weighing 5,300 pounds", which, of course, it probably does. I mean, it's made of stone. When I actually saw the thing on television I was struck by how surprisingly small looking it was. Nevertheless, in refusing to follow a federal order and the instruction of his state's Attorney General to remove the monument he is doing his cause no favors. In fact, he is placing himself in the company of state officials in other states who openly refuse to abide by the USA Patriot act, and other dissenters with whom I'm sure he would rather not be grouped. His ludricous attempt to defend himself in Wall Street Journal's Opinion Journal contained plenty of over-the-top rhetoric and little substantive legal or other reasoning: "By telling the state of Alabama that it may not acknowledge God, Judge Thompson effectively dismantled the justice system of the state." Okay. . . sounds like somebody needs a nap. As an Opinion Journal editorial written the next day said:
Justice Moore's political grandstanding isn't helping matters. And his defiance of U.S. District Court Judge Myron Thompson's order to remove the monument has resulted, appropriately, in his suspension from the bench. The civil disobedience argument may fly for a Martin Luther King, but certainly not for an elected state judge sworn to enforce the law. If Justice Moore wants to become a professional protester and ignore federal court orders, he'll need to hang up his robe first.
But, on the other hand you've got those people who seem to think that the vaguest, most general, non-denominational acknowledgement of the existence of God in the public sphere means that we're about a month away from turning into an Iran-style theocracy. They bandy about phrases such as "separation of church and state" and "establishment clause" to the point that they become all-consuming mantras, while they have little context of where they come from and what they actually mean. Or, if they are knowledegable enough to know the context they seldom deign to elucidate how exactly they apply to the case at hand, as if the mere repetition of what has essentially become a catch-phrase is enough to settle any argument. It does not help matters that many of these people have an innate bias against Protestant Christianity as it is practiced by many believers in the American South. It also does not help matters that many of these people have an innate bias against virtually any form of organized religion and see violations of their precious "separation of church and state" under every rock. "In God We Trust" on the national currency! "Under God" in the Pledge of Allegiance! Can public stonings be far behind? Call the ACLU immediately!
The rhetoric of these sophisticated liberals can be every bit as overwrought and demagogic as that of Judge Moore. Check out this post by Jeff Jarvis:
The religious nuts who want God in government refuse to understand that the Constitution is their best protection. They want prayer in school. They want the 10 Commandments in court. They want to be ayatollahs. And fine for them as long as they are the ayatollahs; they'd have their way . . .Our founding fathers were damned smart. And you, Bubbas, are frighteningly stupid.
Of course this is the exact same type of stereotyping, mass ad-hominem attack, and alarmist "slippery-slope" type arguments that northeastern liberals decry when they're used by the hated and feared southern fundamentalists. (i.e. "Gay marriage will lead to legalized bestiality" "I'm Ok, you're going to hell" etc.) Anyone not enraged to the proper extent by Judge Moore's rock is a "religious nut." They also want prayer in school. (I don't want prayer in school, but am ambivalent about the rock, and am not at all religious). They are also an ignorant, poor, white southerner, a "Bubba", and as such part of the one group that it's still apparently acceptable for northern liberals to be prejudiced against. After a rollicking comment box debate Jarvis made a half-hearted attempt to apologize for "Bubba", but ratcheted up the "separation of church and state" rhetoric even further, while making no attempt at a rational or legal explanation of what exactly that doctrine consists of and how it applies to Judge Moore's case. Unfortunately, this is typical of the strident "separation of church and state" proselytizers.
More rationally and Constitutionally inclined secularists, however, can recognize that there are some legitimate issues at stake here that resonate for more people than just a few renegade "Bubbas" intent on instituting there own version of Sharia Law. Liberal Supreme Court reporter Dahlia Lithwick, writing for the liberal Slate proved again why Slate is the best liberal journalism around, not least of all because it openly admits its liberal bias. Her perceptive piece (accurately titled, "Thou Shalt not Pray: Does the Constitution Hate God?") recognized that the case wasn't a black and white battle of enlightened secularists and renegade theocrats (even if Judge Moore could be described as a renegade theocrat) but actually spoke to some important ideas about the place of religion in American public life and in the US Constitution. As Lithwick says:
There is, however, a constitutional problem highlighted by Moore's conduct and by the popular support he's garnered in some circles. A sentiment expressed frequently by elected officials, religious leaders, and even the occasional U.S. Supreme Court justice is that the principle of separating church and state has morphed into unbridled state hostility toward the church. The founders of this country were, for the most part, deeply religious men. Would they, like Moore, object to the ways in which religion has been chased out of the public square?
The reason for this sentiment, as Lithwick astutely explains, is the confusing nature of the First Amendment's treatment of religion, especially in the much ballyhooed "Establishment Clause":
The First Amendment guarantees simultaneously that "Congress shall make no law respecting an establishment of religion" and that Congress won't "prohibit ... the free exercise thereof." Which one is it? How can Congress avoid promoting religion, while also encouraging its free exercise? One answer is that the "Establishment Clause" was not intended by the framers to erect an unbreachable "wall between church and state." Thomas Jefferson himself, who coined that phrase, had no compunction about holding church services in the chambers of the Supreme Court. One possible view is that the Establishment Clause was intended only to ensure that there was no official adoption of a state religion.
This seems to be exactly right, and this is what leads many people who don't want to ban abortion and gay marriage to still worry about possible hostility towards religion in the public sphere, and to feel that this hostility is ahistorical. Lithwick understands this view and then goes on to give a nice, quick summary of the case law involving the "Establishment Clause" which shows that there is strong Supreme Court precedent for interpreting the "Establishment Cause" in a much less restrictive fashion than that described above. She then gets to what really is the central question:
Is it possible for the state to celebrate a plurality of religions without establishing one or several as more legitimate?
No. Because we live in a zero-sum constitutional world. In order to be "neutral" toward all religions, including atheism, the courts have had to erect equal barriers to all. In order to privilege no religion (or even non-religion) the courts have elected to privilege none. This includes the vague "Judeo-Christian" theism that most Americans would probably like to see more of in the public square.
Game, Set, Match Lithwick. Whodathunk, a non-condescending explanation from a liberal legal scholar, and she didn't even have to use the word Bubba. A good, detailed explanation from a lawyer calling himself Alex is also available in the comments to this Jeff Jarvis post.
This was a silly case brought about by a silly, fundamentalist, proselytizing Judge whom should probably be disbarred. Yet, it managed to arouse passion from both sides because it speaks to some unresolved issues that are only going to get more timely. America is a religious country in a way that no other major democracy is. I don't go to church, but larger numbers of people do here than in Western Europe, Japan etc. I'm ambivalent about whether I believe in God, but well over 90% of Americans claim that they do, as opposed to less than half in England, for example. By all accounts the country is just getting more religious, as devout immigrants stream in from all over the world. And, the religious beliefs seem to be getting even more devout, as mainline Protestant denominations and Reform Judaism lose members and more fundamentalist Protestant churches and Conservative and Orthodox Jewish sects gain members. On the other side, Judge Moore's ludicrous behavior will probably drive up ACLU enrollment, strengthen secularists' distrust of devout Christians, and possibly galvanize them for further fights over "Under God,""One Nation Under God, etc.". To come through future squabbles with the Constitution and with freedom of religion still intact we're going to lead a lot more than catch-phrases, mantras, and demagoguery.