Posted on Wednesday, December 15, 2004 - 10:37 am:

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MONTGOMERY, Ala. - A judge refused to delay a trial Tuesday when an attorney objected to his wearing a judicial robe with the Ten Commandments embroidered on the front in gold."

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McKathan told The Associated Press that he believes the Ten Commandments represent the truth "and you can't divorce the law from the truth. ... The Ten Commandments can help a judge know the difference between right and wrong."

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Posted on Thursday, December 16, 2004 - 10:23 am:

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Judges do not make laws, nor are they representative of "the government" in the way a teacher does because judges are a branch of government all of thier [sic] own.

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Posted on Friday, December 17, 2004 - 11:11 am:

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The First Amendment does not say that no government official may take any action respecting an establishment of religion or prohibiting the free exercise thereof. It says that “Congress shall make no law” doing that. Chief Justice Moore is not Congress. Nonetheless, he apparently recognizes that the religion clauses of the First Amendment apply to all laws, not just those enacted by Congress. See
Everson v. Bd. of Educ., 330 U.S. 1, 15, 67 S. Ct. 504, 511 (1947) (holding that the
Establishment Clause applies to the states through the Due Process Clause of the Fourteenth Amendment). Even with that concession, his position is still plenty bold. He argues that because of its “no law” language, the First Amendment proscribes only laws, which should be defined as “a rule of civil conduct . . . commanding what is right and prohibiting what is wrong.” Brief of Appellant at 19 (quoting 1 William Blackstone, Commentaries *44). Any governmental action promoting religion in general or a particular religion is free from constitutional 27 scrutiny, he insists, so long as it does not command or prohibit conduct. The monument does neither, but instead is what he calls “a decorative reminder of the moral foundation of American law.” Brief of Appellant at 19.
The breadth of the Chief Justice’s position is illustrated by his counsel’s concession at oral argument that if we adopted his position, the Chief Justice would be free to adorn the walls of the Alabama Supreme Court’s courtroom with sectarian religious murals and have decidedly religious quotations painted above the bench. Every government building could be topped with a cross, or a menorah, or a statue of Buddha, depending upon the views of the officials with authority over the premises. A crèche could occupy the place of honor in the lobby or rotunda of every municipal, county, state, and federal building. Proselytizing religious messages could be played over the public address system in every government building at the whim of the official in charge of the premises.
However appealing those prospects may be to some, the position Chief Justice Moore takes is foreclosed by Supreme Court precedent. County of Allegheny, 492 U.S. at 612, 109 S. Ct. at 3110, which held unconstitutional the placement of a crèche in the lobby of a courthouse, stands foursquare against the notion that the Establishment Clause permits government to promote religion so long as it does not command or prohibit conduct. Id., 109 S. Ct. at 3110 (“To be 28 sure, some Christians may wish to see the government proclaim its allegiance to Christianity in a religious celebration of Christmas, but the Constitution does not permit the gratification of that desire, which would contradict ‘the logic of secular liberty’ it is the purpose of the Establishment Clause to protect.”) (citation omitted). To the same effect is the decision in Lee v. Weisman, 505 U.S. 577, 587, 112 S. Ct. 2649, 2655 (1992), where the Supreme Court explained that, “[a] school official, the principal, decided that an invocation and a benediction should be given; this is a choice attributable to the State, and from a constitutional perspective it is as if a state statute decreed that the prayers must occur.” And in Jaffree v. Wallace, 705 F.2d 1526 (11th Cir. 1983), prob. juris. noted and aff’d in part, 466 U .S. 924, 104 S. Ct. 1704, cert. denied sub. nom. Bd. of Sch. Comm’rs of Mobile County v. Jaffree, 466 U.S. 926, 104 S. Ct. 1707, and aff’d in part, 472 U.S. 38, 105 S . Ct. 2479 (1985), this Court concluded that “[i]f a statute authorizing the teachers’ activities would be unconstitutio nal, then the activities, in the absence of a statute, are also unconstitutional.” Id. at 1533-35.

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