I took more heat for my last column (defending Alabama Chief Justice Roy Moore yet concluding he should obey the federal court order) than any other. It’s a good sign when your political opponents disagree, but much of this criticism was from fellow conservatives.
There is no way I could answer the hundreds of emails I received, so this column is an attempt to clarify and expand on the previous one.
I believe passionately in religious freedom and that our society is selectively discriminating against Christians and suppressing our religious freedom – so passionately that I’ve just completed a book on the subject, titled "Persecution: How Liberals Are Waging War Against Christianity", that will be released in September.
To reiterate, I believe that nothing in the federal Constitution prevents Judge Moore from displaying the Ten Commandments monument. The First Amendment Establishment Clause prohibits Congress from establishing a national church. It also prohibits Congress from interfering with the right of individual states to establish their own churches if they choose (between seven and nine colonies had established churches at the time of the founding) – not that any would consider it today.
I also believe that the Due Process Clause of the 14th Amendment was never intended to incorporate the Establishment Clause as a prohibition against state governments. Incorporation is a regrettable legal fiction.
I further believe that the other religion clause of the First Amendment, the Free Exercise Clause, has been consistently eroded and often ignored by judicial misinterpretations. I also believe that nothing in the Constitution, or any of its Amendments, gives the courts the power of judicial review. But since 1803, the United States Supreme Court has been exercising that right – having established itself, by its own bootstraps, as the final arbiter of what the Constitution means. In 1824, the Court further declared that state courts are bound to honor Supreme Court decisions.
In my last column I essentially said that although Judge Moore is correct and the federal courts are wrong, he should not disobey the federal courts’ order once all of his legal appeals and other remedies have been exhausted. That, I feared, could result in a breakdown of the rule of law. (It’s still possible, though not likely, that the Supreme Court could decide to hear his case on the merits. It would be wonderful if it did and if it ruled, correctly, in his favor.)
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