Alabama Chief Justice Roy Moore fulfilled a campaign pledge by installing a 5,300-pound Ten Commandments monument in the state courthouse. The 4-foot-tall chunk of granite, topped by two stone tablets with the 10 moral laws, is inscribed on its base: "Laws of Nature and of Nature's God," words taken of course from the Declaration of Independence. Thoughts from George Mason, James Madison and William Blackstone round out the message.
Justice Moore insists that "Roy's Rock," as it is affectionately known, is not intended to establish a state religion: "I feel very strongly that the monument represents the moral foundation of law, which is greatly needed in our country today."
For radical secularists, this is an easy case. The Southern Poverty Law Center, among others, won legal round one: Federal District Court Judge Myron Thompson ordered Roy's Rock removed as "nothing less than an obtrusive year-round religious display."
"Justice Moore was elected to administer justice, not to serve as a religious minister," intoned Richard Cohen, general counsel of the Southern Poverty Law Center.
Justice -- ay, there's the rub. I am less interested in the outcome of this one particular case than in the larger philosophical arguments being made here, not only about the relationship between church and state, but between law and justice, religion and democracy, truth and censorship.
For it is a historical fact, as Justice Moore asserts, that for most of our history, most Americans, including most judges, legislators, intellectuals and ordinary citizens, saw American law as being related to the law of nature and of nature's God, precisely because Americans have always seen law as an instrument of justice. In America, unlike some other countries, this active faith in moral truth did not generally lead to religious oppression, precisely because we hold religious liberty as one of those moral truths, ordained by nature's God who created us to be his children and not his slaves. Our ideals of freedom, including religious freedom and the separation of church and state, were historically at least partly the gift of a specific religious tradition. Must we rigorously censor our past, rewrite our history, suppress the words of our founding in order to be free?
Even deeper: How can we have justice without morality, without a sense of right and wrong? Are our laws really, as Cohen suggests, mere administrative rules, to be obeyed because some man in robes tells us this is the law?
Without justice as its ultimate grounding, law can become an instrument of tyranny. Without justice as an ideal, on what ground can citizens in a democracy criticize and even (on great occasions) disobey its mandates? The Constitution, whispers one commentator, is the ultimate foundation of our law. Yes, but the Constitution endorsed enslaving our fellow human beings. The state and its laws are not always right. If we cannot judge the law and find it wanting, what happens to democracy itself?
In practice, radical secularism (though viewing itself as neutral) ends up in many cases being deeply hostile to democracy and democratic freedoms. So elites applaud Turkey for laws that the ordinary American would view as tyrannical: e.g. banning religious dress at public universities. In India this week, the government sent thousands of constables to arrest a Hindu nationalist leader, Pravin Togadia. His crime? He violated a government edict forbidding religious rallies at election time. The New York Times, viewing this through the prism of radical secularism, chose to applaud the government crackdown against a "provocative rally." Perhaps the imminent dangers justified the imposition of martial law. Perhaps.
But look how easily and casually elites who have decided that religion is the enemy of democracy endorse government oppression of basic human rights.
Maggie Gallagher is a nationally syndicated columnist, a leading voice in the new marriage movement and co-author of The Case for Marriage: Why Married People Are Happier, Healthier, and Better Off Financially.