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The Second Coming of the 10 Commandments Judges

Ship me somewheres east of Suez, where the best is like the worst,
Where there aren’t no Ten Commandments, an’ a man can raise a thirst.

— Rudyard Kipling, Mandalay

It is sort of a second coming.  Not the kind you may have thought of at first.  It’s a second coming of state Supreme Court Justices.  I refer to the recent primary election in Texas, the home of Governor Rick Perry, the state with the most executions in the nation and the state where one in four residents manages to get by without health insurance. In the primary election that took place on July 31 to decide, among other things, who would be one of the new members of the Texas Supreme Court, Texas proved that it will not be outdone by Alabama.

Alabama conducted its primary election back in the spring of 2012and in that election demonstrated that Alabama is not only a God fearing state but a God promoting state.  In the March primary election, voters selected the Republican candidate to be the High Priest of the Alabama Supreme Court (or the Chief Justice as contemporary parlance would have it) and selected none other than Roy Moore.

Roy first became famous when, in 1997, as a state circuit court judge he hung a hand-carved wooden plaque of the Ten Commandments in his courtroom.  He refused a higher court order to remove it. In 2001 Roy was elected Chief Justice of the Alabama Supreme Court, a post he held until 2003 when he was removed by the Alabama Court of the Judiciary.  The removal occurred because six months after he became Chief Justice he supervised the construction and installation of a 5,280-pound granite monument to the Ten Commandments in the central rotunda of the State Judicial Building.  When the 11th Circuit Court of Appeals upheld the ruling of a lower court ordering removal of the monument, Chief Justice Moore refused and, as a result, both he and the monument were removed. In March 2012 he won the Republican primary contest in Alabama and is in a good position to regain the post from which he was removed 10 years earlier. Texas has now joined Alabama.

On July 31, 2012 a primary was conducted pitting Supreme Court Justice David Medina against Tea-Party backed John Devine.  A judicial contemporary of Roy Moore, John Devine was first elected as a trial court judge in 1995.  He won election at that time having campaigned on a platform of getting Christianity back into government, describing himself as a “Christian Principles” candidate.  His campaign literature for the recent primary describes him as the “10 Commandments Judge” who “received national acclaim by refusing to remove a painting of the Ten Commandments from his courtroom and defeated a related lawsuit by liberal activists.”  (The reference to defeating a lawsuit is misleading.  The suit was brought by a party in a civil case who complained that hanging religious symbols in John’s courtroom could improperly influence those on the jury and, in addition, violated certain of the plaintiff’s other constitutional rights.  The case was dismissed when Judge Devine removed himself from the case in question thus rendering the complaint moot.)

Like Roy, John likes religious monuments.   When he assumed the bench in 1995, he and his clerk solicited funds to refurbish a monument that had sat outside the courthouse for more than 50 years.  It was originally erected by Star of Hope, a Christian Charity that provides food and shelter to indigents in honor of William Mosher, a prominent  Houston businessman and philanthropist who had been one of Star of Hope’s supporters.  Over time the monument was vandalized and the Bible was removed. Following his election to the bench and successful in his fund raising efforts, the monument was restored and the Bible placed atop the monument, surrounded by red neon lights.  A suit was brought to compel removal of the monument on the grounds that it violated the Establishment Clause of the Constitution.  The trial court agreed with the those seeking removal of the monument and, on appeal, the Fifth U.S. Circuit Court of Appeals Court of Appeals concluded that a reasonable observer “would conclude that the monument, with the Bible outlined in red neon lighting, had evolved into a predominantly religious symbol. . . . This observer would conclude that Judge Devine and his allies essentially had commandeered the monument for religious purposes, and that the primary purpose of the monument had now become religious.”

With his primary victory, John is assured of a seat on the Texas Supreme Court, one of nine Justices to serve.  In Alabama Roy is also virtually assured of election.  (His opponent is a criminal defense lawyer who has unsuccessfully run for office 10 times and once said undocumented immigrants should be publicly executed.)

The selection of these two men is good news for those who think our courts should be guided by Christian principles.  It’s less good news for those who think they should be guided by constitutional principles.

Christopher Brauchli is an attorney living in Boulder, Colorado. He can be emailed at brauchli.56@post.harvard.edu

 

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