This post does not discuss the allegations of sexual misconduct against Roy Moore. What it does focus on are his political, or, according to him, Constitutional, arguments for why the United States is, from its founding, a nation under God, and that therefore the Ten Commandments should be commemorated at courthouses across the land, and that certain activities should be criminalized for violating God’s laws. As the former judge said in late summer of 2001, “To restore morality we must first recognize the source from which all morality springs.”
That was the summer when, as Chief Justice of the Supreme Court of Alabama, without consulting any of the other justices, Moore ordered the erection of a monument of the Ten Commandments on the premises.
First, let’s consider the ten commandments themselves (notice the lower case lettering here). Simply put, there are different iterations of these commandments with different theological implications. The version of the Ten Commandments that Judge Moore defended as being representative of “all morality” is actually in symbiosis with a narrowly defined faith-tradition, one that, even among Christians, is not universally agreed upon.
For Catholics, the third commandment on Moore’s courthouse rotunda could easily be taken as a direct assault on the veneration of saints. “Thou shalt not make unto thee any graven image,” is not a commandment for Catholics. Neither is it for Lutherans—the Protestant denomination that started the Reformation.
Recently, Moore said, “Throughout our history, we have acknowledged the sovereignty of God. We’ve recognized God in our law, ‘one nation, under God,’ in our pledge, ‘In God we trust,’ on our money, and in our national motto. But today that causes [one] to be polarizing because some people don’t want any restrictions on their life, they don’t want any higher authority. And I understand that, but it is wrong, in this country, because our founding documents say that.”
There are several inconsistencies here. The reason Moore’s comments aren’t completely inaccurate is his insertion of the little phrase “throughout our history.” But he is nevertheless vague, anachronistic, and misleading. For example, there is no telling what the former judge meant when he talked about recognizing God in our law.
The American Constitution, the “Supreme Law of the Land,” does not include God in any way, let alone recognize one. The Declaration of Independence does mention “the laws of nature and nature’s God,” that “men are endowed by their creator with unalienable rights,” the “Supreme Judge of the world,” and a “reliance on Divine Providence,” but there is an ongoing debate as to the nature of the Declaration of Independence’s relationship to law.
The closest, in official terms, that the United States has come to recognizing the Declaration of Independence as the law was in 1901 when the Supreme Court stated as part of the Cotting v. Godard decision that although the Declaration of Independence was drafted in the “thought and spirit” of organic law it “may not have the force of organic law, or be made the basis of judicial decision.”
The Pledge of Allegiance, written in 1892 by Francis Bellamy, did not reference God. The phrase “under God” was added in 1954 by President Eisenhower in direct response to the professed atheism of the Soviet enemy. Two years later the Eisenhower Administration passed a Congressional resolution requiring “In God we trust” to appear on all American currency, and another declaring that the national motto would be “In God we trust.”
Before this, the United States had an official motto for the national seal which was also the unofficial motto for the nation, “E Pluribus Unum.” Eisenhower scrapped this traditional motto but the phrase still appears on the seal and on American currency.
All this legalese is meant to state something quite simple. The Founders, as well as the founding documents, do not make a claim on the “sovereignty of God,” as Moore says. Only the Declaration of Independence might, and the degree to which it can be considered jurisprudential is a wide-open topic of discussion; it most certainly makes no case for endorsing the ten commandments, or for refusing to recognize gay marriage, or for any of the supposedly religious items that Judge Moore has claimed the founding documents do address.
Moore’s case is stronger when he speaks of the motto, the Pledge, and our currency; but all that was done during a two year period in modern history. It is disingenuous to cite these cases as evidence to show that since the founding period American law has recognized the sovereignty of God.
For being the Constitutional scholar that Newt Gingrich claims him to be, and for making such radical or reactionary (take your pick) decisions on Alabama’s highest court in the name of God (for which he was suspended from the bench, twice, and ultimately removed), Moore relies on flimsy arguments that do not pass rudimentary scrutiny.
Also, to go from God directly to the King James Bible, while surely pleasing to many, is a direction that can easily be taken as an affront to freedom of and from religion, which, of course, is guaranteed in Article I of the Constitution.
And even within the King James Bible, the ten commandments he chose to have erected in front of the courthouse represent a sectarian version of the Ten Commandments, one that would only be acceptable to certain Protestant groups—not to all Christians, not to all Jews, and certainly, not to those outside the so-called Judeo-Christian tradition.
Even if Roy Moore is not an idiot (or a pedophile), he is still unfit for office for being so cavalier about the very laws he swore an oath to uphold.
(Btw, in the American system, one can swear an official oath using any scripture, of course, but this is not required by law. The Cat in the Hat, legally, would work just fine. Historically, for a nonreligious person, the Constitution has been the preferred alternative.)