News and Notes
By George Kane
In early February, a three-judge panel of the Sixth Circuit Court of Appeals upheld a ruling by the United States District Court for the Northern District of Ohio that Judge James DeWeese must remove from his Richland County Court of Common Pleas courtroom a poster that includes the Ten Commandments. The court ruled in American Civil Liberties Union of Ohio Foundation, Inc. v. James DeWeese that defendant DeWeese violated the Establishment Clause of the First Amendment when he put up a display entitled “Philosophies of Law in Conflict” that contrasted the “Moral Absolutes” of the Ten Commandments with the “Moral Relatives” of humanism.
The religious right has pointed to this case as yet another instance of liberals attacking the freedom of expression of Christians. Jay Sekulow, the Executive Director of the American Center for Law and Justice that defended DeWeese, denounced the suit as “an erroneous and timeworn interpretation of the First Amendment that is not based on the words, the history or the Founders’ understanding of the Constitution.” But the decision by the circuit court directly answers every argument for the defense.
The court rejected DeWeese’s contention that the display was private religious expression protected by the Constitution, noting that the poster was in a public space and was placed on the wall by a sitting judge. The court then applied the Lemon Test to determine if there had been a violation of the Establishment Clause. This is a three-pronged test established in the 1971 Lemon v. Kurtzman Supreme Court case:
1. The government’s action must have a legitimate secular purpose;
2. The government’s action must not have the primary effect of either advancing or inhibiting religion; and
3. The government’s action must not result in an “excessive entanglement” of the government and religion.
A violation of the Establishment Clause is proved if the government action violates any one of the three clauses of Lemon. The court found that DeWeese’s poster violated the first two, and did not address the Entanglement Test because it was not cited in the arguments by either party.
The court investigated the claim of a “legitimate secular purpose” by examining the history that preceded the poster.
In 2000, DeWeese first hung a Ten Commandments poster in his courtroom. The ACLU filed suit, and that case went all the way to the U. S. Supreme Court. In 2004 it upheld a Court of Appeals order to remove the poster, noting that “DeWeese has not described a role for the Ten Commandments poster in his educational errand other than to admonish participants in talks or programs in his courtroom to look to the Commandments as a source of law. His own testimony belie[d] the secular purpose he wishe[d] to ascribe to it.”
Judge DeWeese hung the latest poster in his courtroom in 2006, hoping to justify a secular purpose by stating his “legal philosophy” in the poster itself. The court in the current case ruled that DeWeese only states that “our legal system is based on moral absolutes from divine law handed down by God through the Ten Commandments,” a purpose which is expressly religious. Given this history, it is clear that the second poster was drafted with the same purpose that the US Supreme Court already ruled violated the Purpose Test of Lemon.
The violation of the Endorsement Test of Lemon is even more explicit. The “Philosophies of Law in Conflict” poster shows the Ten Commandments in one column listed as “moral absolutes” and seven secular Humanist precepts in another column listed as “moral relatives.” The poster declares the two columns in conflict, and insists that the “moral absolutes” of “the God of the Bible” are the “fixed moral standards for restoring the moral fabric of this nation,” that should triumph in the “conflict of legal and moral philosophies raging in the United States.”
The court found that the poster is proved by DeWeese’s own words to endorse religion, as it is not enough to avoid religious endorsement to simply call it ‘philosophy.’ But if the court had looked behind the poster they would have found religious intent even more threatening to church/state separation, the imprint of R. J. Rushdoony, the father of the Christian Reconstructionist movement. DeWeese is a graduate of the Witherspoon School of Law, which is dedicated to the premise that the bible must be the source of civil law.
Rob Boston wrote about Christian Reconstructionism and R. J. Rushdoony in particular in his book Why the Religious Right is Wrong. Reconstructionists believe that the world must be completely reconstituted to enforce the laws decreed by Jehovah in the Old Testament. They would replace most government with autocratic rule by local church leaders. There would be no room for dissent, because, among the many offenses requiring the death penalty, they list blasphemy and “propagation of false doctrines.”
There is so little tolerance for dissent in the Reconstructionist view that many people who support Judge DeWeese could face a death sentence if his views on the relationship of religion and law were realized. People should always be careful of what they wish for.