No more freedom

By Thomas Jipping

If the new Republican Senate majority can next year approve some of President Bush’s common-sense judicial nominees, it will be not a moment too soon. On Nov. 18, a federal judge in Alabama ruled that a 5,280-pound boulder in the state judiciary building isn’t just sitting there, it’s actually busy establishing religion.

Alabama voters in 2000 elected Roy Moore to be Chief Justice of the Alabama Supreme Court. Under state law, the chief justice has authority over such things as statues, plaques and monuments placed in the judiciary building. On Aug. 1, 2001, Chief Justice Moore unveiled in the rotunda a granite monument emphasizing the “moral foundation of law.” It features the Ten Commandments and 14 quotations from secular sources including the Alabama Constitution; the Declaration of Independence; the National Anthem, Motto and Pledge of Allegiance; and America’s founders such as James Madison, George Washington and Thomas Jefferson. No tax dollars were used for its construction or installation.

Three lawyers who practice before courts in the building say they are offended by the 3′ x 3′ x 4′ rock. Seems you can’t use the rotunda bathrooms without having to walk past the thing. So they took action. They did not write Chief Justice Moore a letter, start a petition drive, or recruit someone to run against him in his next election. They did not take out a full-page ad in the local paper or lobby the state legislature for a boulder ban. No, as lawyers do, they went to court. They said that merely having the boulder there violated the First Amendment, which reads: “Congress shall make no law respecting an establishment of religion.”

How on earth is the national legislature creating a national church the same as a state court judge from putting a rock in the lobby? Easy. By simply ignoring the real Constitution and creating a fake one that only judges can see and are allowed to use.

What does the real Constitution mean? First, it leaves states alone regarding religion. (Hint: That’s why they used the word “Congress.”) Congress has rejected more than two-dozen proposals to make the First Amendment limit the states. The same Congress that approved the First Amendment rejected James Madison’s proposal to do so and, after the 14th Amendment was adopted in 1868, repeatedly rejected James Blaine’s similar proposal.

Second, it prohibits an establishment of religion. (Hint: That’s why they used the words “establishment of religion.”) They could have banned support for or endorsement of religion. They didn’t, wanting only to ban formal, coercive establishment but allow an active, visible, non-coercive role for religion in public life. The same Congress that approved the First Amendment called for a national day of thanksgiving and prayer and enacted legislation providing for paid House and Senate chaplains.

What does the fake constitution mean? U.S. District Judge Myron Thompson said that Chief Justice Moore’s “actions and intentions” violated the First Amendment. After visiting the boulder to understand its “context,” Judge Thompson said it has a “religious air” about it. A religious air?

Judge Thompson said he was “captivated” by “the sense of being in the presence of something … holy and sacred.” He said that the monument was “in essence … a religious sanctuary, within the walls of a courthouse.” I looked for a footnote or something, anything, to suggest what “essence” he could possibly be talking about. Nothing.

OK, let me get this straight. This is a rock, a boulder, a hunk of granite. It supposedly violates the First Amendment because it gives Judge Thompson the impression of “a religious sanctuary”? The real First Amendment allowed Congress to authorize use of the U.S. Capitol for church services. Now that’s a sanctuary. How can an imaginary sanctuary be unconstitutional when a real one isn’t?

Judge Thompson said that in addition to its “religious appearance,” the monument has an “ineffable but still overwhelming sacred aura.” This is not a mood rock; it’s a monument to the moral foundation of law. To make the United States Constitution, the supreme law of the land, the charter balancing individual rights with government power, captive to a judge’s airs, appearances and essences is both just plain silly and very dangerous.

Back in 1989, the Supreme Court decided whether the First Amendment permitted a Nativity display in a government building based on the presence of Santa Claus, the relative placement of poinsettias, and whether an evergreen tree had a red bow. Justice Anthony Kennedy correctly condemned this as a “jurisprudence of minutiae” that “trivializes constitutional adjudication.” At least that minutiae was real – plastic reindeer, Frosty the Snowman and candy canes. This minutiae is nothing but ineffable auras conjured up in a judge’s mind.

America needs judges who know the real Constitution when they see it and refuse to create a fake one. The real one might give us what we like, maybe it won’t. But if judges can make up the law, if our freedom depends on a judge’s perceived aura or essence, then we the people have no freedom at all.