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Coming
to a Courthouse Near You...
Enjoying
Alabama's flap over the Ten Commandments? Just wait
until someone tries to expunge God from Virginia's
Constitution.
Many
Virginians have been watching recent events at the
Alabama Supreme Court building with a certain
detachment, even bemusement. It may surprise them to
learn that the same fight may soon come to Virginia.
Anyone
who hasn’t been comatose or away in a place
without news reports knows that a federal judge in
Alabama has ordered the removal of a monument to the
Ten Commandments from the state courthouse in
Montgomery on grounds that its display violates the
First Amendment’s Establishment Clause. The man
who put the monument there, Alabama Chief Justice
Roy Moore, has vowed to resist that order all the
way to the U. S. Supreme Court and beyond. Thousands
of Moore supporters have flocked to Montgomery to
join in the resistance.
Unless
the U.S. Supreme Court uses the Alabama case to
settle once and for all whether a state government
can prominently display religious symbols and
references, we could witness a similar scene in our
own state. Some zealot will surely challenge
Virginia’s famous law that not only refers to the
Christian religion, but also calls on Virginians to
practice it. For more than two centuries, this law
has been a part of the Virginia Constitution.
George
Mason persuaded delegates to the Convention of 1776
in Williamsburg to adopt this provision as part of
the Virginia Declaration of Rights. Section 16
guarantees the free exercise of religion, but it
also provides “that it is the mutual duty of all
to practice Christian tolerance, love and charity
towards each other.”
A
decade later, the Virginia General Assembly enacted
a Statute Establishing Religious Freedom drafted by
Thomas Jefferson, who also authored the Declaration
of Independence with its references to God, His laws
and divine providence. The Religious Freedom Statute
begins, “Whereas Almighty God hath created the
mind free.” It goes on to say that religious
coercion departs “from the plan of the Holy Author
of our religion.”
The
Virginia Declaration of Rights and the Statute
Establishing Religious Freedom were the basis for
the Free Exercise and Establishment Clauses of the
First Amendment to the U.S. Constitution. It would
be ironic indeed if a federal judge were to declare
these precursors unconstitutional.
Just
as some insist that a memorial to the Ten
Commandments displayed in a government building
offends the First Amendment, some are sure to
challenge the explicit endorsement of Christian
values and the acknowledgement of the role of
Almighty God, which are ensconced in Virginia law.
In fact, it could be argued that the incorporation
of these references in the text of state law is far
more offensive to the Establishment Clause than the
mere display of a symbol carved out of stone.
In
a 1922 opinion, Virginia’s highest court said that
this is “a Christian State.” The same statement
appears in opinions of the U.S. Supreme Court and
other state courts. One of the most famous of those
opinions was by Chancellor Kent of New York, who
wrote that “we are a Christian people, and the
morality of the country is deeply engrafted upon
Christianity.”
Whatever
one thinks of Alabama Chief Justice Roy Moore, he
did not come to his position out of any original
thinking. He has simply repeated propositions long
embraced by jurists at every level and from every
part of this nation.
--
September 8, 2003
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