The judicial fight against God and the people

Ben Shapiro
Posted: Mar 30, 2005 12:00 AM

On Monday, March 28, the Colorado Supreme Court thrust into sharp relief the battle against traditional morality being waged by both state and federal judiciaries across the nation. In a 3-2 decision, the Colorado Supreme Court declared that Robert Harlan, a convicted murderer, had to be given a life sentence instead of the death penalty recommended by the jury because jurors leafed through a Bible for moral guidance during the sentencing phase of the trial. This, the majority stated, violated a jury proscription against viewing outside material:

The judicial system works very hard to emphasize the rarified, solemn and sequestered nature of jury deliberations... Jurors must deliberate in that atmosphere without the aid or distraction of extraneous texts.

 This is inane. The judge who presided over the Harlan trial instructed each juror to make an "individual moral assessment" in determining whether Harlan should receive the death penalty; Colorado law dictates that jurors be instructed to consult their own personal morality before making such decisions. Many of the jurors obviously believed personally in Biblical morality. Viewing a Bible is nothing more than consulting a moral compass in which you believe. As the court's dissenters wrote:

The biblical passages the jurors discussed constituted either a part of the juror's moral and religious precepts or their general knowledge, and thus were relevant to their court-sanctioned moral assessment? In so holding, the majority puts death penalty jurors in an impossible bind; jurors are instructed to make the ultimate decision about life or death based on their individual moral assessment -- so long as their individual moral assessments are made from memory.

 Is this decision really as arbitrary as all of this, or is there something deeper lurking beneath the surface? When the legalese is stripped away from this decision, all that is left is strident opposition to Biblical morality. The real point of the majority's decision was far simpler than mumbo-jumbo about extraneous texts. The point, as they articulated it, was this:

Some jurors may view biblical texts like the Leviticus passage at issue here as a factual representation of God's will. The text may also be viewed as a legal instruction, issuing from God, requiring a particular and mandatory punishment for murder. Such a 'fact' is not one presented in evidence in this case and such a 'legal instruction' is not the law of the state or part of the court's instructions.

The Bible is a legal and factual text that dictates a code of morality -- a code of morality that the Colorado courts explicitly require the Biblically-minded to consider. It is this superior code of morality , not legality, that the court dislikes. The Court's obfuscation of the issue by equating Biblical injunctions with Colorado statute is silly at best; if the Bible's statutory implications were taken at face value by the jurors, they would have to vote to acquit, seeing as how there were not two eyewitnesses to the Harlan crime (Deuteronomy 17:6).

 In reality, this decision signals a cosmic shift in the way the American judicial system works. It used to be that moral judgments were to be made by the people. These judgments were usually articulated via legislation by elected legislatures. In Colorado, moral judgments in criminal cases are explicitly left to the people in the form of the jury.

 Now, however, the roles have been reversed. Judges have become the ultimate moral arbiters, while the people are barred from making collective moral decisions. While the Colorado Supreme Court rips jurors for using the Bible as a source for morality, judges have no qualms about looking to "extraneous texts" to impose their morality on the rest of us: Just view the United States Supreme Court's recent decision in Roper v. Simmons, where the majority cited "evolving standards of decency," and then proceeded to justify its own standard of decency by referring to international law. Or how about Lawrence v. Texas, where the majority decided that the Constitution guarantees a right to sodomy based on blasts of hot air from Justice Kennedy: "The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime"?

 And so the people are prevented from bringing their moral beliefs to bear, while the elites on our benches legislate their morality for the rest of us. These judges don't just want to prevent Americans from bringing their Bibles into jury rooms; they want to prevent Bibles from entering voting booths. In one sense, the Colorado Supreme Court is right -- the Bible is authoritative. But it's certainly a better authority than the subjectivism espoused by our judges.