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The Eleventh Commandment.

by Sal Rosken
August 25, 2003

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Sweet Home Alabama_Sal Rosken-The Eleventh Commandment "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

The United States Constitution
First Amendment

Not content to observe from the wings the upstart state of California, basking alone in the political limelight, the great state of Alabama has slunk upon the national stage with a studied insouciance worthy of an aging ingénue entering stage right in the midst of a matinee performance of "Cat on a Hot Tin Roof."

While California's burlesque provides a welcome comedic relief, providing the political equivalent of a tiny circus Auto spilling onstage an endless gaggle of clown candidates to amuse and startle a bewildered citizenry, the Alabama performance promises to unveil a morality play replete with the dramaturgy of a much darker and tragic motif.

The Plot Exposition

The plotline of this Southern theatrical is fairly straightforward, if not simple: A fifty three hundred pound granite monument, inscribed with one version of the Ten Commandments, was erected by Alabama Chief Justice Roy "Big Daddy" Moore on Alabama State property in the rotunda to the State Judicial building in Montgomery. Despite the fact that not all Christians or Jews agree on the exact wording of the mythic tablets supposedly handed down to His chosen people by the Almighty, the righteous Chief Justice saw no problem in memorializing his version of the commandments for the edification and improvement of all visitors to the State Judicial Building.

A special interest group, Americans United for Separation of Church and State, taking the part of the Antagonist, then sued in Federal Court to have the monument removed, claiming it violated the United States Constitution's First Amendment provision of Separation of Church and State. The Federal Court very quickly agreed and ordered the monument removed; whereupon Alabama Chief Justice Moore, with a stentorian righteousness reminiscent of Charlton Heston playing Moses, defied the Federal Court order, citing Alabama States Rights and his own personal allegiance to God before Country; or at least allegiance to God before the mendacity of those meddling Feds. To the credit of the Alabama Judicial system, the Alabama State Judiciary Committee very quickly suspended State Chief Justice Roy Moore for defying the Federal Court and reaffirmed the Federal court order to have the unconstitutional monument removed from public State property.

Enter the Chorus. A group of devout Christian followers of Chief Justice Roy Moore (you know things have reached a sorry state when even State Chief Justices have acquired a following) assembled to demonstrate their extreme displeasure at the suspension of their holy Chief Justice and vowed, under threat of arrest and bodily harm, to block the removal of the offending slab of granite, summoning up, a la Hamlet's father, the ghostly vision of Alabama Governor George Wallace astride the doorway in an effort to block the segregation of Alabama's schools.

Curtain Falls. End of Act One. Before the curtain rises on the Second Act of this dying genre of Mint Juleps-among-the-Magnolias-in-Dixie melodrama, and before the play reaches it's denouement with or without a Deus ex Machina - it would be a salubrious exercise to analyze the meaning of the plot thus far.

A Christian Alabama

The juxtaposition of The Ten Commandments and the Alabama Judicial Court Building, engineered by Chief Justice Moore, with it's implicit connotation that justice served in Alabama is, if not dependent upon a reading of the Old Testament, then at least greatly informed by it, can surely not be lost upon any but the most obtuse Alabamans, or those suffering from genetic defects impairing their powers of observation and reason.

Unlike the phrases, "One Nation under God" or "In God we Trust", which can at least be interpreted to reflect a general recognition of an unspecified, and therefore non denominational, generic Deity who can be shared by all religionists (except of course those pesky Atheists and Agnostics), both the language and the source of the Ten Commandments are resonant and meaningful only to those who practice a religion based wholly or in part on the Old Testament.

Atheists and Agnostics are, of course, not the only citizens who do not share a belief in the Old Testament - Chinese American Buddhists, Japanese American Shintoists, Indian American Hindus, Caribbean American Voodooists, African American Animists, Native American Spirit Ancestor worshippers and Mid-Eastern American Muslims are but a few of the US and Alabaman ethnic and religious groups who not only do not subscribe to The Ten Commandments, but also have no cultural, historical or religious acquaintance with either the Old or New Testament.

But the greater issue underlying this spectacle is not just the exclusion of or intrusion upon minorities who do not share the majority's obeisance to a Judeao-Christian Divinity's religious proscriptions, the true issue upon which this drama revolves, and which is at stake, is the Constitutional basis for Separation of Church and State.

The First Amendment

There are many, on the Christian Religious Right, who seriously claim the United States Constitution does not provide for Separation of Church and State. The First Amendment, they argue, only proscribes the Government from passing a law that would establish a national religion or prohibit the free exercise of religion. This literal reading, the Christian Religious Right holds, does not prohibit a Religion from exercising it's influence on the people through Government, and any attempt to curtail or attenuate that influence is, de facto, a prohibition on the free exercise of religion - an argument which presumably can be fully appreciated only by someone in the ecstatic grip of a very intense religious epiphany.

The Christian Religious Right argues that since the drafters of the Constitution failed to build into the Constitution a clear firewall between the domain of Caesar and the presumed Almighty, using the exact words "Separation of Church and State", the First Amendment is therefore only one directional, forbidding the Government from entering Religion, not vice versa, and a complete separation of church and state does not exist.

This impasse in the debate over government and religion then forces, as it has so often times in the past, an examination of the "intent" of the founding fathers. The two examples of the founders' intent most often cited involve the writings of Thomas Jefferson and James Madison.

The Founding Fathers

In a now famous letter to the Danbury Connecticut Baptists, Thomas Jefferson responding to the Baptists' concerns over religious liberty took the opportunity to state clearly and unequivocally that indeed there was a wall separating Church and State in the Constitution.

The Baptists were concerned that Connecticut's state constitution did not prohibit the state from becoming involved in religious matters, writing, "...what religious privileges we enjoy we enjoy as favors granted, and not as inalienable rights: and these favors we receive at the expense of such degrading acknowledgements as are inconsistent with the rights of freemen." Jefferson responded to the Baptists' concern by expressing his own view that the First Amendment did provide religious liberty.

"Believing with you," he wrote " that religion is a matter which lies solely between man and his God, that he owes account to none other for his faith or his worship, that the legislative powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should "make no law respecting an establishment of religion, or prohibiting the free exercise thereof," thus building a wall of separation between Church and State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties.'

This affirmation by Jefferson, confirming "a wall of Separation between Church and State", and providing the citizenry with "no natural rights" in opposition to their "social duties", is irrelevant according to the Christian Religious Right; as the extra Constitutional writings of Thomas Jefferson, even though a primary drafter of said document, are not the Constitution. If it is not in the Constitution itself, they argue, it does not exist. (By way of parenthetical aside, it is noteworthy that Jefferson associated "Opinion" with Religion and "Action" with Government lending still further strength to the argument that it was Jefferson's conviction that Religion was a mental exercise between the Deity and the worshipper and that once the worshipper entered the realm of "Action", such as erecting granite monuments in State Judicial buildings, he entered the purview of Government.)

But Jefferson was not alone in his conviction that Religion had no place in Government and vice versa. In a letter to Robert Walsh dated March 2, 1819 James Madison, the man often called the Father of the Constitution, wrote:

"The civil Government, though bereft of everything like an associated hierarchy, possesses the requisite stability, and performs its functions with complete success, whilst the number, the industry, and the morality of the priesthood, and the devotion of the people, have been manifestly increased by the total separation of the church from the State."

Note the emphatic "total."

Then again in a series of documents that have come to be known as the "Detached Memoranda" Madison wrote in 1820:

"Strongly guarded as is the separation between religion and Government in the Constitution of the United States the danger of encroachment by Ecclesiastical Bodies, may be illustrated by precedents already furnished in their short history."

Here Madison not only reaffirms the Separation of Church and State in the Constitution, but warns of the encroachment by Ecclesiastical Bodies. Unfortunately, Madison could not foresee the religious encroachment on Government by an Alabama State Chief Justice sworn to uphold that very Constitution.

Divine Literalism

Unconvinced, the Religious Right once again argues, unless it is codified in the Constitution itself this supposed "separation" does not exist. This insistence upon a literal reading of the Constitution by the Christian Religious Right is neither surprising nor unexpected. It is after all the literal reading of the Bible that has brought the Christian Religious Right to the belief that theirs is the Power and the Glory. The only remedy to resolve this dispute it would seem is a Constitutional Amendment clearly creating an impenetrable wall separating Church and State.

But the First Amendment covers more than the practice of Religion. The second freedom the Amendment guarantees is the Freedom of Speech for it states the Government will pass no law abridging the freedom thereof. Using the literalist approach, utilized by the Christian Religious Right to justify the influence, or to use Madison's term "encroachment", of Religion on Government, one can only interpret the Freedom of Speech provision as being absolute; but who today would sincerely argue in defense of the now famous hypothetical miscreant, intent upon malefaction, who cries "Fire" in a crowded theatre when there is no fire? Surely, using a literalist interpretation of the wording of the Constitution, to claim that such an instance of injurious speech by an individual is guaranteed under the constitution is a perversion of the founder's intent; and is, for most reasonable people, to coin a phrase, self evident.

The First Amendment also guarantees freedom of the press and freedom of assembly, but would a reasonable person be expected to conclude that these freedoms include the advocacy of unwarranted and unlawful violence against others, in government or otherwise, simply because the Constitution does not specifically place such limits on those freedoms?

Every Freedom guaranteed by the Constitution, including Religion, is subject to the interpretation exercised by reasonable people who recognize that only Anarchy can result from a literalist interpretation of the Freedoms guaranteed under the Constitution; and Anarchy based upon Absolute Freedom benefits only those positioned to utilize a combination of demagoguery, power and wealth to suppress and enslave those lacking the means to resist. Anarchists paint a very attractive picture of an individual's freedom from all constraints and government regulation, but there is not a single instance in history of an Anarchist sticking around after Chaos ensues to direct traffic or pick up the garbage.

All The World's A Stage

The theme being played out in Alabama's current endorsement of a religious document not recognized by all of it's citizens, has implications on not only a state, and national level but, due to the increasing propensity for countries with large populations of Muslims to vote for fundamentalist religious states, is pertinent far beyond Alabama's and this nation's borders.

As America is scrutinized by the world's masses, as no nation in history has been before, we must be mindful that this Southern drama has appeal beyond these shores. It's theme and plotline are universal. And one can be sure many of those pledged to bring about religious states around the world, will watch with interest how the second act of this drama unfolds. Alabama Justice Roy Moore would be no less an Ayatollah for insisting upon the preeminence of the Ten Commandments in Alabama State law than Ruhollah Khomeini was for his insistence upon the preeminence of Sharia law in Iran following the deposition of the Shah.

Should anyone doubt the danger of introducing Religion into the realm of Secular Political Governance let him study the history of the Thirty Years War, or the Expulsion of the Huguenots from France or even the modern history of Afghanistan's Taleban. The immediate dangers and harms presented by these historical examples of religion's influence on government, seem to me, much greater than shouting "Fire" in a crowded theatre and argue persuasively for a very strong, reinforced, impenetrable Jeffersonian Wall. It is far, far, safer to err on the side of absolute secularism than to allow the imposition of religious principles in the public domain, no matter how well intentioned or sincere. Lest we forget - Al Qaeda is, after all, a "faith based initiative."

The South Shall Rise Again

Alabama Chief Justice Roy Moore is not ignorant, nor unaware, of the Constitutional issues that are inherently at risk in the position he and his fellow fundamental religionists have taken in this seemingly innocuous contretemps over a poorly executed and unsightly artistic rendering of a seminal Jewish and Christian religious document. The Chief Justice, somewhat hypocritically, has chosen to skirt the fundamental issue of Separation of Church and State, which he knows, if the shoe were on the other foot and the monument in question contained a section of the Koran or Hadith, he would most certainly oppose. Instead the pietistic Chief Justice has taken refuge behind that old paragon of the South's inferiority complex - States Rights. The Alabama State motto is after all "Audemus jura nostra defendere" (We Dare Defend Our Rights). Almost but not quite, "We double dare you to interfere". For some in the South "The War of Northern Aggression" has never ended.

If Alabama Chief Justice Moore and his followers succeed in defying the Federal and the State Supreme Court orders to remove the Ten Commandments from within the Alabama courthouse, it is then reasonable to ask what position will they possibly take if in the future a Muslim majority in say Dearborn Michigan decides to install sharia law?

The Eleventh Commandment

Without a Jeffersonian interpretation of a clear wall separating Church and State, one is left with either a meaningless one size fits all quasi religiosity (I pledge allegiance to the flag of the United States of America, one nation under God, Yahweh, Allah, Buddha, Lord Rama, Santeria, the Great White Spirit, the Madis Gras god Comus etc. etc.) or a social and demographic free for all in which the application or lack of application of the First Amendment depends largely, if not entirely, upon whose Ox is being gored. Better to be adamant that no religion is appropriate in public government than yield to some acolyte's vision, divinely informed by personal conversations with the Deity, of what you can or cannot do.

Perhaps instead of a new amendment to the Constitution erecting a wall of separation between Church and State, we need an Eleventh Commandment - "Thou shalt use Reason, Pragmatism, Deference to others and Humility in obeying the previous ten Commandments."

Comments (8)

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Barnabas from The Partial Observer writes:
August 26, 2003
Two points.

1. Whatever current arguments may be raised against such expressions as the Alabama monument, history does not validate the constitutional one. The first amendment was written, as it says, to limit the actions of Congress, not of the states. If the intent were as sweeping as Sal Rosken believes, Connecticut could not have had an established church for thirty years after the Constitution was in force. The Congregational Church was the official ecclesiastical instrument of the government until 1818 and the bulwark of the Standing Order that dominated society, education, and politics throughout the colonial and early national periods.

(www.ctheritage.org, and innumerable other sources.)

2. The religious right is a careless designation. I may or not be a member of the religious right on Sal Rosken's terms, but my knowledge of American history does not automatically make me one.

If one is to speak of the religious right in these terms, then Madison and Jefferson deserve to be cited not as founding fathers but as members of the Religious Left.

Mike from Merritt Island Florida writes:
August 26, 2003
Alabama should be called the lightning rod state. You never hear too much out of those folks, but when you do, it draws lightning. I lived there for almost 14 years and never quite figured the place out. Here's an example: I have a friend there who is a wealthy banker who lives in a house of 15,000 square feet. Five inside servants and six outside. J. is a graduate of Alabama, dated Cornelia before George Wallace married her and has a propensity to use the N word. One afternoon sharing a drink with J. he began pontificating about how the N's were taking over everything and that Alabama was going to hell in a handbasket. Before he could get a second wind, One of the long time black house servants entered the room and started chastising him, saying, Mr. J... you know better to than to be talking that way and Mr. T... you know better than to be listening to that trash. That's all she said. Mr. J. and I promptly went back to talking about football...

The Jedge will have his day in the sun, the tablets will be moved quietly or loudly from the courthouse, and Alabama will go back to debating the strengths and weaknesses of The Tide and The War Eagles.

Moslems, Jews, Jains, Buddhists, and snake handling holy rollers will continue to ignore Alabama like they always have...until lightning strikes again...

Jonathan Wilson from Chicago writes:
August 26, 2003
I would like to thank the PO's resident agnostic for this insightful examination of the issues. As a pastor and an evangelical, I especially appreciated Rosken's critique of the version of the 10 Commandments. He is absolutely correct in his analysis - in that sense, the Chief Justice is asking Alabama tax-payers to establish a particular (and abridged) translation.

I only take issue with one statement from Rosken, to the effect that absolute secularists are safer for a nation. The absolute secularism of Sovietism and Maoism lend weight to the arguments of religionists in any society. The problem is not faith or its lack - the problem is tyranny.

The Chief Justice of Alabam is behaving like a tyrant on an issue that is becoming another thorn in the flesh evangelicals. Many evangelicals are attempting to share the good news of God's love in Jesus Christ to a culture in dire need of redemption - it is a shame when others sharing our religious framework attempt to bully the culture backwards according to a vision of an America that never existed. Sincerely, Jonathan Wilson

Sal Rosken writes:
August 31, 2003
My apologies for the delay caused by a vacation in responding to the comments contained in the three letters written in response to my Article Sweet Home Alabama.

Taking Barnabas' two comments first:

If the intent were as sweeping as Sal Rosken believes, Barnabas writes Connecticut could not have had an established church for thirty years after the Constitution was in force.

Substitute Alabama for Connecticut, Slavery for established church and until 1865 for thirty years and I think you will readily see the flaw in this argument. Arguing that Connecticut established a virtual theocracy in defiance of the Constitution as proof that Separation of Church and State does not exist on a State level is tantamount to arguing that the historical existence of Slavery at the State level in defiance of the Constitution is proof that the abolition of slavery does not exist. It was afterall the Connecticut Congregationalist's hegemony over Connecticut that prompted the Danbury Baptist's letter in the first place. And Jefferson's statement, ...I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties. clearly is an expression of the hope that Connecticut would soon fall in line. Jefferson was in no position at the time when the Republic was still in it's infancy to enforce Connecticut's compliance. Skip ahead almost one hundred years and Abraham Lincoln found himself in a much stronger position to uphold the Constitution.

As for Barnabas' objection to the term Christian Religious Right, I think it is indeed a careful and not careless designation. Perhaps Barbnabas' discomfort is based, less on the term itself and more upon those with whom he apparently finds himself sharing an opinion.

Next to the Reverend Wilson's gracious comments. The idea that the evils of Soviet and Maoist Communism stem from a lack of religion in those countries is I'm afraid attributing the evil to the wrong source. The Cult of Personality that existed in Maoist China and Stalinist Russia combined with the complete eradication of personal incentive are the fundamental causes for the terrible living conditions experienced under those regimes - not the lack of religion. I would describe the lack of religion under those regimes as Totalitarian Secularism as opposed the the Absolute Secularism mentioned in my article. Under Absolute Secularism you are free to practice your religion outside of government as you see fit, under Totalitarian Secularism you are not free period.

Finally, having lived several years in both southern Virginia and Georgia, and having traveled on business extensively throughout the South I agree with Mike that Alabama is a wondrous and mysterious place. His anecdote is shared by almost anyone who has spent considerable time in the South and has come to know it's citizens. The issue, I am convinced, is that some in the South, fewer and fewer I might add, have yet to learn that Words do matter and Words can cause harm. Fortunately, the numbers ignorant of that fact are diminishing steadily.

Barnabas from Partial Observer writes:
August 31, 2003
Arguing that Connecticut established a virtual theocracy in defiance of the Constitution as proof that Separation of Church and State does not exist on a State level is tantamount to arguing that the historical existence of Slavery at the State level in defiance of the Constitution is proof that the abolition of slavery does not exist. said Sal Rosken in response to my letter.

I do not follow this. Slavery was constitutional before the Civil War. Now, of course, it is not, following appropriate amendment. Before that time arguments against slavery were on moral and theological grounds. So perhaps Connecticut's state church was a very bad idea, but it wasn't unconstitutional (unlike slavery, it still isn't - what is cited as constitutional are judicial opinions, not the text itself.) Constitutionality has to do with what the Constitution says on the subject (or said at the time of its supposed violation) not on what we wish it said.

As to labels: they are irrelevant to argument. An argument stands on its merit, not on whether you like the debater.

I believe, Sal, that I was calling you on a matter of fact, not of opinion.

Sal Rosken writes:
September 1, 2003
The idea that States are today free to establish State Religions under the Constitution would be hotly contested by constitutional lawyers who would cite the Incorporation doctrine of the 14th Amendment which prevents States from abridging the freedoms granted to US citizens under the Constitution. Section One of the 14th Amendment reads:

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States - nor shall any State deprive any person of life, liberty, or property, without due process of law - nor deny to any person within its jurisdiction the equal protection of the laws.

The passage of a law by a State which establishes a State religion, it would be argued, and I believe successfully, abridges the privileges or immunities of citizens of the United States and violates the freedom of Religion of those within the State not fortunate enough to belong to the proper denomination. I don't believe you will find many constitutional experts who would agree with Barnabas' contention that So perhaps Connecticut's state church was a very bad idea, but it wasn't unconstitutional (unlike slavery, it still isn't .), nor with with Mr. Ecklund's statement that They allowed the States the right to determine for themselves what is best for their residents...no amendments have passed to take this right away from the States. The 14th Amendment does just that.

I will grant Barnabas his point about Slavery being constitutional prior to the post Civil War Amendments, (it was a bad example on my part) but the contention that States are free to do whatever they wish regarding Religion, including establish a State religion is neither supported by the 14th Amendment nor the numerous court cases supporting Incorporation.

In my article, I tried to present the point that if taken literally the Constitution does not provide for Separation of Church and State, but that absolute Freedom of Religion, like absolute Freedom of Speech and Absolute Freedom of Press are not viable freedoms in a civilized society wishing to avoid anarchy and thus the need for interpretation by reasonable people. Chief Justice Roy Moore's erection of the ten commandments is in clear violation of the spirit and intent of both the First and Fourteenth Amendments. There are no States Rights which Moore can rest his case upon.

August Ecklund from McHenry, IL writes:
September 1, 2003
Discovering the intent of the Founding Fathers is impossible and a waste of time. Many people with different points of view came together to draft and ratify the Constitution. Some wanted only the Senate others want only the House of Representatives. Many wanted a very strong federal government others did not want any federal government. The members of the Constitutional Convention hotly debated all these issues along with the importance of the separation of church and state. What they finally agreed to they wrote down and ratified in the Constitution and Bill of Rights. The Founding Fathers agreed to limit Congress’s (the Federal Government) actions in regard to establishing a state religion, they did not agree to limit the actions of the individual States. They allowed the States the right to determine for themselves what is best for their residents. As Barnabus correctly points out, no amendments have passed to take this right away from the States.

Before you label me a member of the religious right (although I am not ashamed that I share an opinion with them, I also gladly share opinions with Liberals) - I should point out that as a resident of the State of Illinois, I would not favor any religious monuments in front of Illinois State government buildings. However, what I object to more is the possibility of the federal government making this decision for my fellow Illinois residents and me. Especially since the Constitution does not grant it the right or power to do so. What is the point of having a Constitution if the federal government does not abide by it?

Mike from Merritt Island, Florida writes:
September 2, 2003
This is a great debate! Our founding fathers would be proud!

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