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State of Alabama v. ACLU
Supreme Court of the State of Alabama (1997)

Amicus adopts the Appellees' statement of the case and of the facts.


I. The Ten Commandments Are Significant Because They Are A Religious Text

The placement of the Establishment Clause in the Bill of Rights has led Americans to think of it as primarily a protection of the right of individuals to be free of religious coercion and favoritism. The Clause, of course, embodies those values. That understanding is sufficient to condemn the display of the Ten Commandments in a courtroom or the insistence on beginning the jury terms with prayers which always reflect the theological presuppositions of one faith.

There is, however, a more fundamental jurisdictional aspect to the Clause. The Clause limits the jurisdiction of state and federal governments to secular matters. The writ of the State of Alabama is confined by the Constitution to secular matter Alabama has no authority to resolve religious disputes, or to post authoritative versions of religious texts, as Judge Moore has done by displaying one of many versions of the Ten Commandments. And it may not expropriate religious values, language or texts for its mundane and secular -- perhaps even profane -- purposes.

It is, at bottom, this breach of the jurisdictional bar, this intrusion into realms that are off-limits to the state and its officials, that the court below properly redressed by enjoining courtroom prayer and ordering the removal of the Ten Commandments. Its insistence that Judge Moore confine his judicial authority to the secular matters within his authority, and that he not inject religion into his courtroom, is soundly rooted in this fundamental and freedom preserving limitation on his authority.

II. The Contemporary Importance of The Ten Commandments Lies In Their Religious Significance

In evaluating claims that the Ten Commandments are displayed only for secular purposes, it is appropriate to emphasize that which should be too obvious to require proof -- that the Ten Commandments remain significant because they are primarily a religious document This 'fact' is established as binding precedent by Stone v. Graham, 449 U.S. 49 (1982). But even the most cursory review of the relevant biblical texts demonstrates this point beyond any serious question.

The Bible describes the Ten Commandments as the covenant between God and Israel. Deuteronomy 4,13. ("And He gave you this covenant, which He has commanded you to do, the ten words and [He] wrote them on two stone tablets.") In the Jewish tradition, the importance of the Decalogue lies more in their being the evidence of terms of the Covenant than as a full statement of God's law. While for some time recitation of the Ten Commandments was a part of the Jewish daily liturgy in the Temple, the practice was quickly dropped by Jews when early Christians reduced the entirety of the Law to the Ten Commandments. The dispute over the place of the Ten Commandments in the liturgy, is reflective, of course, of larger disputes over the place of law in the service of God which divided Christianity and classical Judaism. 5 Encyclopedia Judaica 1437 (s.v Decalogue).

No reasonable person can deny the explicit religious context of the Ten Commandments. It is this context which is their primary importance to the society in general.(1) They are binding, they announce, because God has commanded them. Almost half of the commandments deal exclusively with religious subjects -- including monotheistic beliefs, banning idols and idol worship, swearing falsely in God's name, and requiring Sabbath observance in imitation of God's having created the world in six days. Exodus 19. None of these provisions has, or can have, any secular counterpart in the laws of Alabama. Even Sunday closing laws are constitutional only if they are not religiously motivated. Braunfeld v. Brown, 366 U.S. 599 (1961); Two Guys from Harrison v. McGinley 366 U.S. 420 (1966); Lane v. McFadyen, 259 Ala. 205, 208, 66 So.2d 83, 85 (1953).

The remainder of the Commandments may be "secular" when torn from the religious matrix in which they are embedded -- but the very act of separating them from their religious context is an act of secularization of a document of central religious significance to many religious traditions. The desacrilization of the Ten Commandments is a project the state through its officials may not undertake. It is in any event certain from his arguments in the court below that Judge Moore does not intend to do that. He displayed the Ten Commandments -- and now defends them in this Court -- precisely because of their religious significance.

1. A glance at Books in Print under the heading "Ten Commandments" lists several dozen books, almost all of which are popular religious tracts, not dispassionate scholarly works.

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