Supreme Court Refuses to Hear Ten Commandments Appeal

By Jeff Johnson | July 7, 2008 | 8:21 PM EDT

Capitol Hill ( - Liberal activists temporarily won their fight to outlaw the display of the Ten Commandments on public property Monday when the justices of the U.S. Supreme Court announced that they will not hear Alabama Chief Justice Roy Moore's appeal to keep such a display in the Alabama Supreme Court Building.

Moore had previously lost battles at both the federal district and 11th U.S. Circuit Court of Appeals levels. Based on current trends, the high court would probably only hear a Ten Commandments case now if another federal circuit upheld such a display as protected by the Constitution, contradicting Moore's 11th Circuit defeat.

Barry Lynn, executive director of Americans United for Separation of Church and State (AU), said he is not surprised Moore lost.

"This is the end of the legal line for Roy Moore," said Lynn, former legislative counsel for the American Civil Liberties Union (ACLU). "It is time for Moore to face facts: he's on the wrong side of the Constitution."

But Richard Thompson - chief counsel for the Thomas More Law Center, which filed a brief Oct. 23 in support of Moore's appeal - said the Supreme Court was demonstrating "its hostility towards religion" and that justices had "missed an opportunity to clear up confusing lower court decisions dealing with the public display of the Ten Commandments.

"Not only is the Court disregarding the plain text of the Constitution, the intent of our Founding Fathers, and the history of our nation, but by its action is disregarding the very words of our Declaration of Independence, which acknowledges that we are a nation under God," Thompson declared.

"We as a nation will pay the penalty for the Court turning its back on God," Thompson added.

The ACLU and AU sued Moore after he placed a four-foot tall, 5,280-pound granite monument, which cited the Ten Commandments, various federal and state statutes and quotes from the country's founding fathers, in the Alabama Supreme Court building. The suit claimed that the presence of the monument violated the First Amendment.

Moore said, at the unveiling of the monument, that the quotes would "remind Alabama courts and citizens that in order to establish justice we must invoke the favor and guidance of Almighty God."

Understanding the 'wall of separation' letter by Thomas Jefferson

Liberal activists, opposed mostly to the involvement of conservative Christians and Jews in public discourse, have used the First Amendment's Establishment Clause in their attempts to bar acknowledgement of religion on public property or in official speeches or writings.

Lynn's group is named after the concept, allegedly derived from the First Amendment, that religion should be separated completely from government.

The First Amendment clause cited by such groups states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof..."

Contrary to what many Americans believe, the often cited reference to "a wall of separation between church and state" does not appear in the Constitution, the Bill of Rights or the Declaration of Independence.

That phrase originates from a letter written by President Thomas Jefferson, responding to an address about his election by the Danbury Baptist Association.

"Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions," Jefferson's final draft stated.

"I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should 'make no law respecting an establishment of religion, or prohibiting the free exercise thereof,' thus building a wall of separation between Church & State," Jefferson wrote.

A 1998 restoration of Jefferson's original draft of the letter by FBI scientists sheds new light on the then-president's intent.

Jefferson originally included the phrase, \ldblquote...confining myself therefore to the duties of my station, which are merely temporal, be assured that your religious rights shall never be infringed by any act of mine..." in his letter.

James Hutson, chief of the manuscript division of the Library of Congress, wrote an analysis of Jefferson's original language. He believes Jefferson, who Federalists were accusing of being an atheist, had a clear public relations intent in writing the letter.

"He wanted his political partisans to know that he opposed proclaiming fasts and thanksgivings, not because he was irreligious, but because he refused to continue a British practice that was an offense to republicanism," Hutson wrote.

"To emphasize his resolve in this matter, Jefferson inserted two phrases with a clenched-teeth, defiant ring: 'wall of eternal separation between church and state' and 'the duties of my station, which are merely temporal.' These last words - 'merely temporal' - revealed Jefferson's preoccupation with British practice," Hutson added.

"Temporal, a strong word meaning secular, was a British appellation for the lay members of the House of Lords, the Lords Temporal, as opposed to the ecclesiastical members, the Lords Spiritual," Hutson explained.

"'Eternal separation' and 'merely temporal' - here was language as plain as Jefferson could make it to assure the Republican faithful that their 'religious rights shall never be infringed by any act of mine,'" Hutson wrote.

But, two days after writing the famous "wall of separation" letter, Jefferson attended church in the chamber of the U.S. House of Representatives in an apparently direct contradiction to the modern, liberal interpretation of his letter.

Jefferson was there to hear his friend, Baptist preacher John Leland, "one of the nation's best known advocates of religious liberty."

"Jefferson evidently concluded that if Leland found nothing objectionable about officiating worship on public property, he could not be criticized for attending a service at which his friend was preaching," Hutson explained. "During the remainder of his two administrations, he attended those services 'constantly.'"

Thompson says fight 'far from over,' monument reverts to private owners

"We remain undaunted, and will continue to work aggressively to defend the Ten Commandments until the court gets it right," Thompson said. "This battle is far from over."

The Ten Commandments monument Moore installed in the Alabama Supreme Court building was funded entirely with private contributions. Its donation to the state was contingent upon its continued public display in that or an acceptable alternative location. If no agreement can be reached, it must be returned.

See Related Story:
Moore Says He Will Take Ten Commandments Case to People (Nov. 3, 2003)

E-mail a news tip to Jeff Johnson.

Send a Letter to the Editor about this article.