First Amendment: One Moore Time

Do you remember Roy S. Moore, the former chief Justice of the Alabama Supreme Court caricatured mercilessly by the media for his refusal to remove a monument depicting the Ten Commandments from the rotunda of the state’s judicial building?

Moore was forced to remove himself from the bench when a nine-member state Court of the Judiciary found in a unanimous decision that he had “willfully and publicly” flouted a federal court order mandating the removal of the monument, thereby placing himself in contempt of a federal court.

It was a classic case of selective indignation. Moore was not portrayed as a heroic figure marching alongside Socrates, Gandhi and Martin Luther King in the noble cause of civil disobedience. Far from it. The late-night comedians and establishment reporters who pop up on the talk shows depicted him as a yahoo and religious fanatic who threatened the rule of law.

It was a cheap shot of the first order. Moore is a 1969 graduate of West Point and a 1977 graduate of the University of Alabama School of Law, a jurist with a long list of awards and publications. Anyone who reads his writing without prejudice will recognize a clear thinker with a firm grasp on constitutional law, and with the ability to express himself on the meaning of the First Amendment in a clear and concise manner.

Consider the observations he made in an op-ed piece that appeared in The Wall Street Journal on the fourth of July. Moore wrote in reaction to the Supreme Court’s recent decisions (McCreary County v. ACLU and Van Orden v. Perry) that defined when and where the Ten Commandments may be permitted on public property. Moore concurs with Justice Clarence Thomas, who wrote in dissent that the Court’s “jurisprudence leaves courts, governments, and believers and nonbelievers alike confused — an observation that is hardly new.”

Confused? I’ll say. Moore: “In McCreary County, the court ruled 5-4 that the display of the Ten Commandments was unconstitutional” because they found a “‘predominantly religious purpose'” in how they were displayed, “an intent to acknowledge the one true God.” On the other hand, in Van Orden, the Court permitted a monument of the Ten Commandments to stay on the state capitol grounds in Austin, Texas because “it had remained in place for nearly 40 years and was a ‘passive’ display among 37 other historical markers….”

I guess it would be possible to spend some time on the difference between what constitutes an active and a passive display of monuments. Instead, Moore cuts to the chase: What do either of these monuments have to do with the First Amendment? Nothing, he argues. “A monument or display could never be a ‘law,’ the mere posting or installation of it is not an ‘establishment,’ and the recognition of God by the public display of the Ten Commandments is not ‘religion.’”

That sounds like common sense to me. Moore starts from the premise that the Founding Fathers understood the meaning of the words that they used. Which also sounds like common sense to me. They knew what was meant by an “establishment of religion.” There was nothing vague about the use of that term when the First Amendment was written.

An “established religion” was an official state religion such as those that were found in Europe at the time. Spain, for example, was officially a Roman Catholic country. Great Britain was officially an Anglican country, with the British monarch the head of the Church of England. Sweden was officially a Lutheran country. Dissenters from the established church in these countries were denied full participation in the political process. That was why the Pilgrims fled England.

The Founding Fathers were determined to avoid such strife. There would be no official religion in the newly established United States. But that did not mean that they intended to deny American Christians the freedom to acknowledge God in public. As Moore notes, “Every state constitution acknowledges God and so does our national motto, ‘in God we trust.’ Ironically, the Supreme Court opens with what they called a prayer in Engle v. Vitale, ‘God save the United States and this honorable court.’” In George Washington’s first inaugural address he referred to “that Almighty Being” and “Parent of the Human Race.” In his farewell address, he “fervently beseeches the Almighty.” John Adams wrote that the “general principles on which the Fathers achieved independence were…the general principles of Christianity.”

Let us not overstate the case. Catholic historians have noted that the understanding of God of men like Washington and Adams was deistic rather than expressive of a belief in the loving Father taught by our Lord. Fair enough. It is an important point. But not one germane to the discussion at hand. The views of men such as Washington, Adams and Jefferson did not include any hostility toward public expressions of Christianity. That is the point.

At the time the Constitution was written, chaplains were named to lead the Congress in prayer; many states continued to have established Christian churches at the state level. Until recently it would have been thought a joke if anyone proposed that it was un-American to sing “God Bless America” or the “Battle Hymn of the Republic” at a public gathering; or for the words “So help me God” to be recited when taking an oath.

Even judges considered liberals and champions of the First Amendment understood this to be the case not that long ago. Moore quotes Justice William O. Douglas in the 1952 case of Zorach v. Clauson: “We are a religious people whose institutions presuppose a Supreme Being.” In the 1961 case McGowan v. Maryland, Douglas added that the “institutions of our society are founded on a belief that there is an authority higher than the authority of the state, that there is a moral law which the state is powerless to alter” and that there are “rights conferred by the Creator which government must respect.”

I am not exaggerating for emphasis: I am convinced that if we could administer a dose of truth serum to the secular liberals they would admit that Moore is right about how the Founding Fathers — and legal scholars in general, up until the middle years of the 20th century — understood the First Amendment. The truth serum would induce them to admit that what they seek is a new understanding of the First Amendment that will knock Christianity from its perch in society in order to make the growing numbers of non-Christians in our country feel more at home.

That proposition can be made, by the way. I would oppose it, of course. I contend that Christianity’s teaching about the relationship of the individual immortal soul to its Maker is at the heart of the American understanding of the importance of individual rights. Such a debate would be an honest debate, instead of all this contorting of the First Amendment that is going on now.

James Fitzpatrick's novel, The Dead Sea Conspiracy: Teilhard de Chardin and the New American Church, is available from our online store. You can email Mr. Fitzpatrick at

(This article originally appeared in The Wanderer and is reprinted with permission. To subscribe call 651-224-5733.)

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