- The Washington Times - Sunday, August 31, 2003

Removal of his Ten Commandments monument from the Alabama Supreme Court rotunda last week did not alter Chief Justice Roy Moore’s stance. That will take a higher power than the U.S. Supreme Court.

“It’s not even an open issue, no matter what the Supreme Court says,” Chief Justice Moore’s attorney, Herbert W. Titus, said in an interview. “We live under a tyranny of judges, and that is not the American system.

“This is a matter of conscience. It’s in God’s hands,” Mr. Titus said.

Mr. Titus, also a special deputy Alabama attorney general, insisted Chief Justice Moore will not let a federal interpretation of the Constitution override his own.

Mr. Titus conceded in the interview last week that federal courts typically permit the use of religious symbols by government — including the motto “In God We Trust” and the U.S. Supreme Court’s own display of Moses with the Ten Commandments — only when accompanied by social, cultural or historical materials.

But the inscriptions with the Commandments on the monument installed by Chief Justice Moore, all mentioning God, are within those bounds, he argues.

“The movement of the monument does [in] no way stop our efforts to get this reviewed by the U.S. Supreme Court,” Mr. Titus said.

A formal request for a hearing likely will be filed in September, he said. Last week, the high court rejected an emergency request to block removal of the monument, but did not rule on the merits.

Federal courts consistently have required that religious displays be justified by a secular, or nonreligious, purpose. Within that context, federal courts have allowed Christmas or Hanukkah observances and a cross on the Ohio State Capitol grounds. They also have upheld Sunday closing laws that establish a uniform day of rest.

An array of sometimes contradictory decisions has muddled the point of separation of church and state — including acceptance of references to God on U.S. currency and official prayer by Congress and the Supreme Court. Some local governments also have been allowed to keep Ten Commandments displays while others have been asked to remove them.

In June, shortly before the Atlanta-based 11th U.S. Circuit Court of Appeals ordered removal of the monument installed by Chief Justice Moore, the 3rd Circuit in Philadelphia permitted Chester County, Pa., to retain an 83-year-old bronze courthouse plaque bearing the Commandments.

Justice John Paul Stevens noted in a 1989 opinion that a frieze in the courtroom of the U.S. Supreme Court itself depicts Moses holding two tablets, showing Commandments six through 10 in Hebrew. A different portion of the frieze shows a tablet symbolizing the first 10 amendments to the Constitution, the Bill of Rights.

“Indeed, a carving of Moses holding the Ten Commandments, surrounded by representations of other historical legal figures, adorns the frieze on the south wall of our courtroom, and we have said that the carving signals respect not for great proselytizers but for great lawgivers,” Justice Stevens said in a decision setting conditions for Christmas Nativity displays.

The Alabama chief justice’s constitutional interpretation on the Ten Commandments may find support from three of the Supreme Court justices, including Chief Justice William H. Rehnquist, who has taken stands on church-state issues several times since 1980.

“The Establishment Clause does not require that the public sector be insulated from all things which may have a religious significance or origin. … The Ten Commandments have had a significant impact on the development of secular legal codes of the Western world,” Chief Justice Rehnquist wrote in objecting to the court’s unsigned opinion on the First Amendment church-state issue in a 1980 case, Stone v. Graham.

Justices Antonin Scalia and Clarence Thomas in 2001 joined his opinion and said the Supreme Court “never determined … that the Commandments lack a secular application,” despite their religious guidance to Christians and Jews.

The 5,280-pound monument that Chief Justice Moore installed in the Alabama Supreme Court’s rotunda includes excerpts of the Commandments. It also references official documents, including “In God We Trust” from currency, “one nation under God” from the Pledge of Allegiance, and “so help me God” from oaths.

The nation’s highest court is in the process of deciding whether to address the pledge issue in a pending California case.

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