The Ten Commandments Lawsuits: Successfully Eroding the Free Exercise
Clause of the First Amendment
by Rachel Alexander

Groups like the ACLU claim they are filing lawsuits against the
appearance of religion in society in order to prevent violations of
the Constitution's Establishment Clause. In reality, their lawsuits
are taking away the right to the free exercise of religion guaranteed
by the First Amendment.
The ACLU and Americans United for the Separation of Church and State
assert that they filed lawsuits against Alabama Chief Justice Roy
Moore out of concern that a monument of the Ten Commandments located
in the Alabama state courthouse violated the First Amendment's
prohibition against any law respecting the establishment of religion.
But the monument has nothing to do with establishing religion. In
reality, their lawsuits aim to prohibit Moore from exercising his
First Amendment right to the free exercise of religion, which is an
equally important clause in the First Amendment.
So far, the federal courts have sided with the ACLU, ordering Justice
Moore to move the monument. Justice Moore has steadfastly refused,
even though a federal judge threatened him with fines of $5,000 a
day. On August 22, 2003, the Alabama Judicial Inquiry Commission
suspended him for refusing to comply. In order to sue Justice Moore
in the first place, the ACLU found some local attorneys who were
willing to be clients and claim to be victims of discrimination,
alleging that their clients could not get a fair trial in Justice
Moore's courtroom because of the monument. Of course, the plain truth
is that whether there is a monument reflective of our nation's
foundational history present in the building or not has nothing to do
with Justice Moore's views and rulings. If Justice Moore believes in
the Ten Commandments and considers them part of the moral code of our
country, he is going to believe that regardless of whether there is
an obscure piece of art symbolizing them nearby.
If the ACLU and other organizations that have been historically
hostile to religion disagree with Justice Moore's views, they need to
organize voters to remove him from office democratically. Using the
court system to remove a monument that is symbolic only, and probably
not noticed by 90 percent of the people who come through the court
building each day, is not a solution, it is harassment. However, the
ACLU knows it can't win democratically and fairly, because, as they
assert on their website, it is well known that the reason Justice
Moore was elected was precisely because of his convictions, which
include putting the Ten Commandments on the wall inside his courtroom
and allowing clergy to say a prayer before trials.
What the ACLU refuses to acknowledge is that it has successfully
sterilized religion from society to such a degree that a backlash has
emerged. No one really believes that an obscure monument of the Ten
Commandments represents government establishing one religion and
prohibiting others, which is what the First Amendment's Establishment
Clause specifically forbids - and actually it specifically forbids
Congress only. The U.S. is not China or Iran, or even one of our
fellow Western Democratic countries that recognize one religion as
their official faith. People are beginning to realize that religion
has been so stripped from our society by groups like the ACLU and the
Southern Poverty Law Center that the other half of the First
Amendment's religious clause - the half the ACLU ignores, the Free
Exercise clause - is being infringed upon by the government. Ever
notice how the ACLU never quotes the First Amendment, which says in
regards to religion, "Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof."
The ACLU pretends that is protecting constitutional rights, but in
reality, it would prefer it if people didn't know what the
Constitution actually said. If people actually read the Constitution,
they might find that they disagreed with the ACLU, and that the
ACLU's pretense of supporting "rights" was actually a sham. After
all, where in the Constitution does it support the defense of men to
molest boys, one of the ACLU's favorite legal causes?
The ACLU's erosion of religion from society has been successful
because it couches its work in Orwellian terminology. In a prior
victory against Justice Moore, ACLU attorney James Tucker called the
ACLU's successful erosion of the First Amendment's Free Exercise
Clause a victory for religious rights: "This ruling is a major
victory for the Constitution, the rule of law, and for religious
rights and liberties in Alabama." Gradually stripping the people of
their constitutional right to the free exercise of religion is
cleverly referred to as "the First Amendment separation of church and
state." While "separation of church and state" sounds good in theory
- never mind that it is not even in the Constitution - and would be
something to be concerned about in a country where the government
told people what they can and cannot believe, it is irrelevant here
in the U.S. People here are free to choose different religions, and
do so zealously. If anything, our public schools and employers
discourage us from mentioning or observing religion. If a "separation
of church and state" is needed, it is needed to get the government
out of telling us we cannot practice our religions.
Three judges from the Court of Appeals for the Eleventh Circuit
claimed in a 50-page ruling against Moore that if they agreed with
him, he would put up religious paintings and quotes, and that judges
everywhere around the country would put up Buddha statues, Menorahs,
and crosses. The absurdity of this logic is all too obvious. Does
anyone really believe that judges everywhere will decorate their
courthouses with religious symbols? Of course not, there may be a few
judges who do, but they are by far in the minority. And thanks to our
wise Founders, we have a clearly written First Amendment that
prohibits government from establishing one religion; no judge would
be able to instill his religion upon people who use his courthouse.
By forcing judges to remove any religious symbols from their
workplaces, the ACLU is effectively forcing them to promote an image
that they are devoid of religion. Since judges are free to adorn
their courthouses with non-religious decorations, the impression
people get who visit courthouses is that the judges have many likes -
because they'll see their Monet paintings and domestic violence
pamphlets - but religion isn't one of them. The smarter people, who
are aware that 96% of the population believes in God and demonstrate
it by wearing crosses, sporting religious bumper stickers and wearing
WWJD wristbands, will wonder if religion is being censored by the
government.
The reason the ACLU has gotten away with its quest to sterilize
religion from society is because of sympathetic justices who have
bought into their Orwellian arguments. In 1971, Chief Justice Burger
in Lemon v. Kurtzman made up the "Lemon test," which took a "living
Constitution" interpretation of the First Amendment, in order to
pretend that the First Amendment was more prohibitive of religion
than it really was. Ignoring the Founders' intent when they drafted
the First Amendment, as well as the plain language of the First
Amendment, Burger made up three criteria that lower courts would have
to consider when deciding whether religion's appearance in society
violated the First Amendment. From then on, any occurrence of
religion in society that was remotely related to the government would
be analyzed based on whether it had a secular purpose, whether the
primary effect advanced or inhibited religion, and whether it
fostered excessive entanglement with the state. Of course, since our
government is so large now, and pervasive in so many areas of our
lives, from tax breaks to public agencies to obscure regulations,
that virtually any reference to religion, unless it is within your
own home - and even then, watch out if you run a home business - can
be attacked by the ACLU under this impossibly vague test and purged
from society.
Currently, Supreme Court Justice Sandra Day O'Connor's "endorsement
test" is frequently used as the gauge of whether religion in society
should be eliminated, since O'Connor is often the swing vote on the
court between the liberals and the conservatives, resulting in her
authorship of many of the court's opinions. Like the Lemon test, this
test is much more prohibitive of religion than the First Amendment
itself, and can easily be satisfied to "prove" that anything remotely
connected to religion is "unconstitutional." As long as the ACLU can
assert that a Ten Commandments monument "endorses religion," as open
to interpretation as that is, they can win and get it removed. The
key is playing on the emotions of the judges to make them feel guilty
that perhaps as much as four percent of the population is "offended"
by the presence of religion. It is much easier to persuade a few
judges based on an emotional argument, than get a constitutional
amendment passed expanding the Establishment Clause to restrict
religion in society.
So what is the solution? For too long, conservatives have neglected
the legal profession, particularly the judiciary. While Justice
O'Connor was making inroads as one of the first women to attend law
school and become a judge, conservatives were telling women to stay
at home and raise children. Now Justice O'Connor is in charge of
deciding how much religious freedom our society is entitled to, not
the Founders and our Constitution or even a majority in society.
While studies show that is better to have a parent in the home for
the children, there has to be some sort of middle ground, or the
children will lose their rights outside of the home. Over the past 40
years, the legal profession has been dominated by liberals who have
bought into the ACLU's pretense of defending "constitutional rights."
Most law schools have only two faculty members who identify
themselves as conservatives. Consequently, Justice Moore cannot
expect much support from the federal judiciary arguing that the
revisionist interpretation of the First Amendment's Establishment
Clause has encroached on the First Amendment 's Free Exercise Clause.
Years of Orwellian doublespeak about "rights" by groups like the ACLU
has paid off, and judges would rather risk violating the Constitution
than violate the ACLU.

--
Atheism teaches that there is no God, hence no God-given rights. That
ideology coupled with a system that believed in the superiority of
the state at the expense of the individual was murderously
synergistic.

If the ACLU and other organizations that have been historically hostile to
religion disagree with Justice Moore's views, they need to organize voters
to remove him from office democratically. Using the court system to remove a
monument that is symbolic only, and probably not noticed by 90 percent of
the people who come through the court building each day, is not a solution,
it is harassment. However, the ACLU knows it can't win democratically and
fairly, because, as they assert on their website, it is well known that the
reason Justice Moore was elected was precisely because of his convictions,
which include putting the Ten Commandments on the wall inside his courtroom
and allowing clergy to say a prayer before trials.