By Alan Bean

This Politics Daily article by legal analyst Andrew Cohen reflects the combination of panic and zeal conservative Christians are evincing in these strange times.  Ohio trial judge James Deweese didn’t just display the Decalogue in his courtroom, he displayed a series of posters arguing that the law rests on a religious (read ‘Christian’) foundation.  The implication is that, shorn of its biblical support system, the law would crumble to dust.  Consider this gem:

There is a conflict of legal and moral philosophies raging in the United States. That conflict is between moral relativism and moral absolutism. We are moving towards moral relativism. All law is legislated morality. The only question is whose morality. Because morality is based on faith, there is no such thing as religious neutrality in law or morality.

Without religion, it logically follows, there is no law and there is no morality.  If the moral relativists win we are headed for anarchy.

There are only two views: Either God is the final authority, and we acknowledge His unchanging standards of behavior. Or man is the final authority, and standards of behavior change at the whim of individuals or societies.

The judge’s either-or dualism may be over the top, but he isn’t the first to point out that the demise of centralized religious authority creates problems for legal theorists.  Legal historian Stuart Banner notes that, in the 19th century, “from the United States Supreme Court to scattered local courts, from Kent and Story to dozens of writers no one remembers today, Christianity was generally accepted to be part of the common law.”  According to Banner, this meant that the common law had “an existence independent of the statements of judges.”  The law was something out there waiting to be discovered.

Then all of that fell apart.  Oliver Wendell Holmes (1841-1935) dismissed the notion that the law was a “brooding omnipresence in the sky.”

But if the common law didn’t reflect the voice of God, even imperfectly, what exactly is the law.  Holmes’ answer wasn’t very satisfactory, even to him.  According to Steven Smith, professor of law at the University of San Diego, “Holmes asserted that the law is nothing more than a set of predictions about what judges will do.”

As 20th century philosopher Gilbert Ryle put it, “Once you’ve seen the judges and lawyers at work, you’ve already seen the law.  All of that–the judges and lawyers and so forth–is the law.  If you think there’s anything more, you’re making a category mistake.”

Fortunately, as Steven Smith points out, most working lawyers never give this issue a moment’s thought.

Judge Deweese is a striking exception to that rule.  But is his concern religious or political?  Consider this remark:

The cases passing through this courtroom demonstrate we are paying a high cost in increased crime and other social ills for moving from moral absolutism to moral relativism since the mid 20th century.

Perhaps Judge Deweese’s courtroom is a departure from the norm, but the crime rate has actually been dropping like a rock in recent years.  Still, you can’t blame the man, thanks to mass incarceration, dropping crime rates have translate into crowded dockets.

Although the “law as the voice God” argument has been out of fashion (at least in academic circles) for well over a century, Deweese says everything went to hell in the mid-20th century.  He is talking about the 1960s, the era in which church/state separation became a front burner issue.  This was also the heyday of the civil rights movement which, from the perspective of the American conservative movement, was all about disrespect for authority or, to use Barry Goldwater’s phrase, “crime on the streets”.

Behind judge Deweese’s religious zealotry lies the bizarre religious-political philosophy of Rousas John Rushdoony (1916-2001), a strict Calvinist who taught that the legal system and civil governance should follow the dictates of  biblical law while the economy should be ruled by the laws of laissez-faire economics.  In other words, God rules in the courtroom and the legislature; the invisible hand is in charge everywhere else.

This odd combination of Ayn Rand-like hyper-capitalism and radical theocracy (Rushdoony believed in stoning) is pretty much standard issue within the religious wing of the conservative movement.  The fact that Ayn Rand was a militant atheist and that “Austrian school” small government gurus like Ludwig von Mises and Friedrich Hayek were agnostics should make them odd bed mates for militant theocrats, but if Christian fundamentalism wanted a seat at the political table allowances had to be made. 

Of Judge Deweese’s ideas were put to a popular vote he just might win.  But a federal appeals court unanimously turned thumbs down on the judge’s posters.  I wonder how the Supreme Court will rule if the judge appeals. 

Judge’s Ten Commandments Display in Courtroom Ruled Unconstitutional

By Andrew Cohen

A federal appeals court ruled unanimously Wednesday that a local trial judge in Ohio has no constitutional right to hang in his courtroom a poster of the Ten Commandments along with his own pointed comments about “moral relativism” and the rule of law.

In a 17-page order, the 6th U.S. Circuit Court of Appeals declared that the presence of the poster in the courtroom of Richland County Common Pleas Court Judge James Deweese violated the First Amendment rights of lawyers and litigants appearing before him. Asserting that the judge’s “secular” justification for the written message was “a sham,” the federal appellate judges affirmed a lower court ruling ordering Deweese to take down the poster.

Hung on Deweese’s courtroom wall in 2006, the poster includes the following comments from the judge himself above the familiar list of commandments: “There is a conflict of legal and moral philosophies raging in the United States. That conflict is between moral relativism and moral absolutism. We are moving towards moral relativism. All law is legislated morality. The only question is whose morality. Because morality is based on faith, there is no such thing as religious neutrality in law or morality.

“Ultimately,” Deweese’s poster states, “there are only two views: Either God is the final authority, and we acknowledge His unchanging standards of behavior. Or man is the final authority, and standards of behavior change at the whim of individuals or societies.” In addition, underneath the commandments, the judge added this comment:

“The cases passing through this courtroom demonstrate we are paying a high cost in increased crime and other social ills for moving from moral absolutism to moral relativism since the mid 20th century. Our Founders saw the necessity of moral absolutes. . . . The Declaration of Independence acknowledges God as Creator, Lawgiver, ‘Supreme Judge of the World,’ and the One who providentially superintends the affairs of men. Ohio’s Constitution acknowledges Almighty God as the source of our freedom. I join the Founders in personally acknowledging the importance of Almighty God’s fixed moral standards for restoring the moral fabric of this nation.”

The lawsuit was brought by the American Civil Liberties Union, and the new ruling by the federal appellate judges marked the second time in the past 11 years they’ve had to admonish Deweese for his courtroom art. In 2000, he hung on his courtroom wall a copy of the Ten Commandments — alone without any of his own comments — before the federal courts ordered it taken down. In Wednesday’s ruling, the 6th Circuit cited this litigation history in rejecting Deweese’s new claims that he had a constitutional right to post the additional messages above and below the commandments in court.

The poster “sets forth overt religious messages and religious endorsements,” the appeals panel wrote. “It is a display of the Ten Commandments editorialized by Defendant, a judge in an Ohio state court, exhorting a return to ‘moral absolutes’ which Defendant himself defines as the principles of the ‘God of the Bible.’ The poster is an explicit endorsement of religion by Defendant in contravention of the Establishment Clause.”