Promoting Religion in the Courtroom

Americans United for Separation of Church and State highlights an interesting recent decision:

A federal appeals court made the right call in requiring a state judge in Ohio to remove a Ten Commandments display from his courtroom, says Americans United for Separation of Church and State.

The 6th U.S. Circuit Court of Appeals ruled today that James DeWeese, a judge of the Richland County Court of Common Pleas, ran afoul of the Constitution 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.

“Judge DeWeese was improperly promoting his personal religious beliefs in his courtroom, and I’m glad the appeals court put a stop to it,” said the Rev. Barry W. Lynn, executive director of Americans United, which filed a friend-of-the-court brief in the case.

Added Lynn, “Our courts are supposed to provide equal justice for all, not promote religious law. Judges should never send the message that some religious traditions have a preferred place in the courtroom.”

The case goes back to 2000, when DeWeese hung a poster of the Ten Commandments opposite a poster of the Bill of Rights, presenting each as “the rule of law.” The American Civil Liberties Union of Ohio sued and won. In response, DeWeese created the new display. The ACLU sued over that as well.

If you head over to the AU site, you can read or download the PDF of the decision (or click here). It's only 17 pages long, and I thought it was a good read. The decision cites case law on the Establishment Clause of the First Amendment – "Congress shall make no law respecting an establishment of religion." I found it educational to read about the "three prongs" of judging such matters, which seem quite fair and sensible. The decision's thorough and methodical, finding that Judge DeWeese violated two of the prongs – and presents plenty of support for each of these findings. Additionally, the decision makes a useful and clear distinction between DeWeese's free speech rights as a private citizen and the "government speech" he engaged in this situation. I would imagine (or hope) all that thoroughness would make subsequent overturning less likely. I also found it interesting to see how the court dealt with the issue of credibility and bad faith from DeWeese.

As for DeWeese himself – he seems pretty out there. Back to AU:

In addition, Americans United pointed out on its website that DeWeese has been affiliated with Christian Reconstructionism, the most extreme manifestation of the Religious Right. Reconstructionists believe in imposing “biblical law” on America based on the legal code of the Old Testament.

Read the decision for the full text of what DeWeese posted, but he seems pretty hostile to legal opinion for a judge, setting it up in direct opposition to the God he believes in. His main claim is that (emphasis mine):

The cases passing through this courtroom demonstrate we are paying a high cost in increased crime and other social ills for moving from moral absolutism to moral relativism since the mid 20th century. Our Founders saw the necessity of moral absolutes. President John Adams said, “We have no government armed with power capable of contending with human passions unbridled by morality and religion. Our Constitution was made for a moral and religious people. It is wholly inadequate for the government of any other.” The Declaration of Independence acknowledges God as Creator, Lawgiver, “Supreme Judge of the World,” and the One who providentially superintends the affairs of men. Ohio’s Constitution acknowledges Almighty God as the source of our freedom. I join the Founders in personally acknowledging the importance of Almighty God’s fixed moral standards for restoring the moral fabric of this nation. Judge James DeWeese.

In other words, the problem with America is it needs more God and religion – specifically, DeWeese's conception of both God and religion. I'm reminded once again of Mitt Romney's anti-JFK speech and his ahistorical, illogical, false and pandering bullshit claims that "freedom requires religion" and that morality is impossible without religion. While Romney is a disingenuous snake oil salesman, I suspect DeWeese is quite sincere. If he believes what he says, okay – but the job of the judge is to apply the law fairly and justly, and that includes respecting legal precedent. It's not a good fit for him. He'd be better off as a preacher, who could try to sell his social conservatism and any extremist, crackpot notions he liked. He could rail against those he saw as sinful for not obeying his commands – lord knows that approach always works well.

Is that unfair? Is DeWeese really that extreme? AU gave more background back in March 2010:

In fact, his critics note, the poster makes it clear that DeWeese is on one side of the alleged religion v. relativism debate. The judge has even gone so far as to claim that societies that do not follow the Decalogue end up like Nazi Germany.

“When Adolf Hitler butchered millions of fellow citizens as biologically inferior, he was acting as a moral relativist,” DeWeese said. “Moral relativism furnishes no ground to condemn Hitler.”

DeWeese’s controversial worldview seems to be shaped by his relationship with some of the most radically theocratic elements of the Religious Right. He is a graduate of the Witherspoon School of Law and Public Policy, a seminar its sponsor, Vision Forum Ministries, describes as “a four-day crash course in biblical principles of law and public policy.”

Vision Forum reminds its students that they cannot “ignore God’s Word as the foundation for law and liberty.”

At first glance, the San Antonio, Texas-based ministry looks like a typical conservative Christian outfit that promotes home schooling, male-dominated families and a literal interpretation of the scriptures. In fact, the group is aligned with Christian Reconstructionism, a movement that seeks to replace secular democracy with a fundamentalist theocracy.

Reconstructionists argue that “God’s law,” including the harsh legal code of the Old Testament, should be binding on modern-day America. They insist that believers of their stripe should re-order (“reconstruct”) governments and establish theocratic rule to pave the way for the Second Coming of Jesus.

Reconstructionists say the Old Testament mandates the death penalty for various offenders, including homosexuals, the “unchaste,” blasphemers, adulterers, witches, those who worship false gods and even “incorrigible” teenagers.

Vision Forum is run by Douglas W. Phillips, son of Howard Phillips, a longtime Republican operative and former Nixon administration official who drifted into Reconstructionism during the 1990s. The organization doesn’t flaunt its alignment with Reconstructionism – probably aware of its controversial nature – but Reconstructionist writers are a staple on its Web site.

Tellingly, the site is littered with columns by William Einwechter, a Pennsylvania pastor who in 1999 authored a controversial essay arguing that the Bible mandates the stoning of “disobedient” teenagers. (Einwechter spoke at the Vision Forum’s 2008 Witherspoon seminar in Fredericksburg, Va., offering lectures on “Christian Jurisprudence” and “The Bible and Female Magistrates.”)

DeWeese has a featured article on the Vision Forum Web site as well. In it, he argues that America was founded on “the fixed law of God” and criticizes court decisions upholding church-state separation, school integration, abortion rights and gay rights as examples of judges changing the law by judicial edict.

That's pretty far out there – and I'm sure it's just a coincidence that all of his principles privilege white, straight, male social conservatives. A theocratic judge presents, at best, an inherent conflict of interest. How exactly does that work, being a judge of law in America when one disagrees with the very foundation of law in America, the Constitution itself? This is hardly some minor dispute or difference of opinion; DeWeese is going against plenty of history (as do all the "America was founded as a Christian nation" crowd) and a trail of case law – some of it cited against him in this very decision. I imagine it was cited in the previous decision against him too, but if so, he ignored it – and this is a recurring theme with theocrats. The ACLU is currently considering legal action against the Giles County School Board (in Virginia) for deciding to post the Ten Commandments in their public schools – which they did despite the advice of their own attorney. It's not that they don't know this is illegal – they don't care. These are power grabs, perhaps fueled by spite as well. I'd bet DeWeese doesn't truly understand the First Amendment and the history of separation of church and state in America, but the more important point is that, like all Christian dominionists, he's made it absolutely clear he rejects it.