October 27, 1999

Debate highlights views on Ten Commandments posted in courthouse
___By Mark Wingfield
___Managing Editor
___DALLAS--Does the First Amendment prohibit display of the Ten Commandments in a courthouse?
___It's not just a rhetorical question, but a real-life drama that has played out recently in the Alabama courtroom of Circuit Judge Roy Moore, a Southern Baptist whose display of the Commandments sparked a national debate and two legal battles.
___ The debate came to Texas Oct. 19, when Alabama's attorney general squared off against a Baylor University professor of church-state studies at a luncheon forum sponsored by the Dallas chapter of the Federalist Society. The Federalist Society is a national organization of politically conservative attorneys.
___ Attorney General Bill Pryor, who was appointed to the post in 1997 by Gov. Fob James and then elected to a full term in 1998, sees no prohibition of the First Amendment in posting the Commandments in a courthouse. He has been an ardent defender of Judge Moore.
___ To make his case, Pryor described the interior of three courtrooms he has visited in the United States.
___ The first features "huge murals," one of Jesus Christ preaching the Beatitudes with an inscription of Scripture beneath. Above the bench in this courtroom, he said, stands a mural depicting Moses giving the Ten Commandments.
___ The second courtroom opens through wooden doors engraved with tablets bearing Roman numbers one through 10 and inside features a mural of ancient lawgivers such as Moses and dozens of other engravings of tablets like those the Ten Commandments were given on, he said.
___ The third courtroom has no symbols on its doors, no murals on its walls, but does feature portraits of American heroes such as Abraham Lincoln and George Washington, a framed copy of the Declaration of Independence and the Mayflower Compact, a seal of the state and a "small wooden plaque" bearing the Ten Commandments.
___ Then Pryor revealed the identities of the courtrooms he had described. The first is in the old state capitol building in Pennsylvania, one of the nation's oldest courtrooms. The second is the United States Supreme Court. The third is the courtroom of Judge Moore in Etowah County, Ala.
___ "Why is it that Judge Moore's display, rather than the other displays, has been targeted for prosecution?" Pryor asked. The answer, he suggested, is because Judge Moore is "a controversial figure--a Vietnam veteran, a West Point graduate and a Southern Baptist of very strong opinion."
___ Judge Moore's real problem may be that he "actually believes the Ten Commandments," Pryor said.
___ The debate over posting the Commandments in a courthouse differs from debates over school prayer or the erection of a cross on public property, he declared, because it does not involve coercion of impressionable students and does not involve a symbol that is sacred to only one religion.
___ "The Ten Commandments are recognized not just by Christians but by all of the world's three great religions," he said.
___ Even so, the First Amendment "does not prohibit our government from acknowledging God or our Judeo-Christian heritage," Pryor said.
___ Judeo-Christian beliefs are the "basis of this republic," he said, suggesting that if it is unconstitutional to hang the Ten Commandments in a courtroom it ought to be equally illegal to hang the Declaration of Independence because of its acknowledgment of God.
___ The opposing side in the debate was presented by Derek Davis, director of the J.M. Dawson Institute of Church-State Studies at Baylor.
___ The question of whether to post the Commandments in a courtroom is "not a difficult one at all," Davis said. "Those who want to post them should not, and those who have them up should take them down."
___ Dawson then suggested that, were he alive today, even James Madison--whom the Federalist Society features on their literature--would agree with Davis' position.
___ "What drives the desire to post the Ten Commandments is a sense that we are in a moral decline in our country," Davis asserted. "The answer for many is an infusion of religion."
___ That's no problem, he said, except when government becomes the agent of infusing religion.
___ He cited six problems with posting the Commandments in a courtroom:
___ u Which version will be posted? "Protestant, Catholic and Jewish versions are all different," he said, noting variances in wording and order. Since each tradition considers their own version sacred, Davis asked, whom will government choose to offend?
___ u Allowing such a display violates the Establishment Clause of the First Amendment ("Congress shall make no law regarding an establishment of religion …"), Davis said. Regardless of a judge's personal convictions, he is a public servant who acts as an agent of the government and therefore should avoid any appearance of favoring one religion over another, he added.
___ Those who claim that prohibiting judges from posting the Ten Commandments violates their right to free expression of religion are mistaken, Davis said. "Asking individual officers uphold the Constitution is not the same as asking officers to surrender their rights to free expression."
___ Displaying the Commandments is a "subtle suggestion" to jurors "that only those who affirm the Judeo-Christian tradition are worthy to render judgment," he said. This is wrong, he added, because "religious faith is not a requirement for participation in the judicial process."
___ Courts have ruled against posting the Ten Commandments in public school classrooms, and public courtrooms should be no different, Davis said.
___ Government endorsement of sacred texts waters down religious faith and leads to a "trivialization of faith," he said. "It is a sacrilege to argue that the Ten Commandments should be posted in a courtroom because it is a secular document. … Government has no business promoting the merits of a sacred text like the Ten Commandments."
___ During a time for rebuttal, Pryor responded that concern about moral decline in America is the motivation behind efforts to emphasize religion in schools but not in the debate over posting the Commandments in courtrooms. The courtroom issue is an attempt to continue "a longstanding American tradition" of basing judicial concepts on Judeo-Christian principles, he said.
___ Further, it doesn't matter to him which version of the Commandments is posted, Pryor said. He is a Roman Catholic but has a Protestant version of the Commandments posted in his own office, he explained.,
___ And just because posting the Commandments might be controversial or offensive to some is no reason not to do it, he said. The Judeo-Christian perspective embodied in the Commandments "is absolutely the perspective that provides the religious freedom we enjoy. It is a Judeo-Christian tradition that provides religious freedom for Muslims, for Buddhists in our country."
___ In his rebuttal, Davis challenged Pryor's comments about what is motivating the drive to post the Commandments in courtrooms.
___ "This is not about recapturing a legal tradition," he said. "It is about recapturing our Judeo-Christian tradition" and a "movement to garner government support for other religious expression."
___ This is a dangerous quest, Davis said later, because America is a far more religiously diverse nation today than it was at its founding.
___ A growing number of citizens who embrace faith traditions other than Judaism and Christianity are offended by government advancement of the Judeo-Christian tradition to the exclusion of all others, he explained. "I don't accept the fact that it's OK to engage in government acts that are offensive to so many in the population."
___ During a question-and-answer time, one participant asked why the First Amendment carries any weight over state matters, since it reads "Congress shall make no law …," thus implying a restriction on federal laws only.
___ Davis responded that the Constitution "did not prohibit state establishments in the beginning," but that the last state-established religions were gone by 1833. Further, as a result of the incorporation documents developed after the Civil War and the 14th Amendment, it became a common understanding that the Bill of Rights would apply to states as well as the federal government, he said.
___ Pryor agreed with Davis' answer to the question, saying the distinction between federal and state rights is not the place to pursue action. Rather, his interest, he said, is to prove that even in the federal documents "there's not the strict separation of church and state."
___ Another questioner pressed Davis to respond to Pryor's description of the three courtrooms, inquiring why Davis would permit the Supreme Court to retain its religious displays while asking circuit court judges to avoid religious displays.
___ Davis responded that he would prefer no religious display be made in any courtroom. However, the Supreme Court's display has been there for decades and the Supreme Court is a fundamentally different environment than a circuit court, he said. "There are no jurors and no witnesses who are compelled to be before the court."
___ The most intense exchanges of the day came at the conclusion of the question-and-answer period when someone asked about government vouchers to pay for education at private schools. The moderator, however, quickly ruled that was a topic for another day.



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