The Conflict Between the First Commandment and the First Amendment

Chief Justice Roy Moore of the Alabama supreme court is courting controversy by defying a federal court order to remove a large monument to the Ten Commandments from the rotunda of the state courthouse. So why is there a conflict between the chief justice of the Alabama supreme court and a federal judge?
After all, Justice Moore’s supporters argue that the Ten Commandments are a simple moral code, completely compatible with the American legal system. And at first blush, the Commandments certainly seem like the kind of rules any judge would gladly honor and routinely enforce. Obviously “Thou shalt not kill” (Sixth Commandment, Exodus 20:13—the King James version of the Bible is used for citations in this article) and “Thou shalt not steal” (Eighth Commandment, Exodus 20:15) easily translate into our modern criminal codes. Even more applicable to a court of law is the Ninth Commandment: “Thou shalt not bear false witness against thy neighbor.” (Exodus 20:16)
The chief conflict between the Ten Commandments and the Bill of Rights arises in the First Commandment: “Thou shalt have no other gods before me.” (Exodus 20:3) By “me” the Old Testament is referring to the deity “which have brought thee out of Egypt.” (Exodus 20:2) Clearly this is referring to the God of Jews, Christians and Muslims. These three groups combined make up a clear majority of the American polity. According to a 1999 Gallup poll, 74% of Americans supported displaying the Ten Commandments in public schools. (http://www.gallup.com/poll/releases/pr990709.asp) With such overwhelming public support, what is wrong, in a democracy, with displaying the Ten Commandments in a government building like the Alabama supreme courthouse? The Constitution.
The First Amendment states, in relevant part, “Congress shall make no law respecting an establishment of religion….” This is commonly known as the Establishment Clause. The Framers inserted this provision because they recognized, as did de Toqueville, the dangers of the “tyranny of the majority.”
The fact that a majority of Americans hold a particular religious view does not mean they can impose that view on their fellow citizens. This was why the First Amendment, which also protects unpopular speech and the free exercise of minority religious practices, was added to the Constitution—to serve as a bulwark against politicians like Justice Moore who seek to trammel upon the rights of minority groups for political gain.
Consider, for example, the hypothetical case of Abramson v. Patel (I am using the names of two of my college friends, one of whom happens to be Jewish and the other Hindu) before the Alabama supreme court. Mr. Abramson might walk into the courthouse, see Justice Moore’s monument and be pleased with this government vindication of his personal religious beliefs. But what about Mr. Patel? He will see not only the First Commandment’s admonition, but by implication, that of the Alabama Supreme Court, to “have no other gods” but “thy God, which have brought thee out of Egypt.” Mr. Patel, a Hindu, does not worship the God of the Old Testament. In essence, the Alabama supreme court has already ruled against his personal spiritual beliefs before he even steps into the courtroom. What confidence can Mr. Patel feel about his prospects of a fair hearing before Justice Moore’s court?
Supporters of Justice Moore argue that our nation’s legal system was founded on Judeo-Christian principles and there is therefore nothing wrong with posting the Ten Commandments in a courthouse. In fact, the Bill of Rights’ “Congress shall make no law” language is strikingly similar to the Ten Commandments’ “Thou shalt not” language. Although there has been recent scholarship indicating that Founding Fathers Thomas Jefferson and Benjamin Franklin were deists rather than practicing Christians, the fact remains that a majority of the Framers were Christians. But it was these same Christians who added the Establishment Clause to the Constitution to prevent the legal codification of their (or anyone else’s) religious beliefs.
Moreover, the Ten Commandments are not the only basis for our legal system. Justice Moore’s monument does not include homages to Hammurabi’s Code, Roman civil law or Blackstone’s Commentaries, all significant forebears of modern American jurisprudence. The Ten Commandments are displayed in the Alabama Supreme Court not for their historic value but for their religious value. Justice Moore has a right to follow the Ten Commandments.
He has the right to post the Ten Commandments in his home or office. He has the right to go door-to-door passing out copies of the Ten Commandments to his neighbors.
He has the right to shout the Ten Commandments in the streets to anyone who will listen. But he does not have the right to impose his views on the people of Alabama under color of state authority.
-Matt Hlinak