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September|October 2004
Making The Partner By Justin Dillon
Above It All By Amy Sullivan
Peter Ambrose, Bladder Cop By Ben Goldstein
The Beagle Brigade By Will Potter
The Prudent Jurist By William H. Simon
Cases & Controversies

Above It All

An Alabama congressman wants to give God an exemption from judicial review.

By Amy Sullivan

THE WALLS OF THE AVERAGE CONGRESSIONAL OFFICE are plastered with photographs of the politician shaking hands and grinning into the camera as he meets with celebrities, foreign leaders, and the occasional constituent. "Look at me!" the displays shout. "I know Bono and the Pope."

By contrast, the walls in Representative Robert Aderholt's (R-AL) office are relatively bare. A signed poster of the country music band Alabama hangs near the chief of staff's desk, but inside the congressman's personal office only one meeting is immortalized. Hanging on a taupe-colored wall is a painting of Jesus sitting in a modern office with a man who looks like an elected official. Inscribed underneath the scene is a verse from Psalm 1: "Blessed is the man that walketh not in the counsel of the ungodly, nor standeth in the way of sinners, nor sitteth in the seat of the scornful."

Aderholt is nothing if not a man led by his religious convictions. Of the 20 pieces of legislation he has sponsored during his four terms in the House of Representatives, five have dealt with allowing the Ten Commandments to be posted in public buildings. Aderholt has received a "Ten Commandments Leadership Award" from the conservative National Clergy Council, and in his cramped office at least three different representations of the Decalogue, the list of the commandments given to Moses, can be found.

This is no surprise, given that Aderholt's most famous constituent is Judge Roy Moore, the former Alabama chief justice who was removed from office last November after defying a federal judge's order to remove the two-and-a-half ton monument of the Ten Commandments that Moore had erected in the state judicial building. Aderholt, and his colleague Senator Richard Shelby (R-AL), have now taken the cause one step further. The Constitution Restoration Act, which they introduced earlier this year, would prohibit judicial review of any action taken by a government official "by reason of that element's or officer's acknowledgment of God as the sovereign source of law, liberty, or government." The sponsors say it would codify the Founding Fathers' intent to recognize God as the source of American law. The act's opponents say it would create an American system resembling that of Afghanistan's Taliban.

The bill is so broadly written that its precise meaning is elusive. "The acknowledgment of God" could mean that the bill does not go much beyond protecting the use of such phrases as "In God We Trust." Or, it could sanction virtually any action by a government official, whether a police officer, mayor, judge, or president, who declares that he or she is following the law of God. To many, this sounds uncomfortably like Islamic Sharia law, in which there is no line between religion and the state. And given the number of practices—from slavery to the condemnation of homosexuality to patriarchal rule—that have at one time been justified on religious grounds, it's easy to envision the potential legal ramifications of allowing one individual's interpretation of "God's law" to trump the U.S. Constitution. Adding to the bill's opponents' concern is the rhetoric coming from supporters. Members of the Constitution Party, a political party that has tried to recruit Moore to run for president, say that the Constitution Restoration Act "may be the most important legislation in the last 50 years."

Aderholt is more restrained. "We've heard the courts speak to this issue for a long time," said the congressman. "Now it's time to hear the people speak." The 39-year-old is gracious and relaxed, but he will not budge when asked why this legislation is necessary, given that public officials already have the right to personal religious expression and that no one is suggesting that "In God We Trust" be taken off the dollar bill.

Insisting that the issue centers around the broader topic of "the acknowledgment of God," a phrase that comes up often from him, Aderholt explained that this legislation would legalize practices previously ruled unconstitutional, such as school prayer and government-sponsored nativity scenes. "Congress cannot make a law telling states that they cannot acknowledge God," said Aderholt.

It is this distinction between religious expression and what appears to be the establishment of state religion that most worries Melissa Rogers, a visiting professor of religion and public policy at Wake Forest Divinity School and an expert on church-state law. "It's generally thought that the Constitution allows government officials a great deal of freedom to talk about their religious convictions," she said. "But they have to abide by the Constitution. And the Constitution says that government should not promote religion."

The Constitution Restoration Act could do more than just establish legal space for government-sanctioned appeals to God and acts of worship. It could retroactively overturn all existing rulings in cases covered by the legislation, such as, for example, the one involving the placement of giant Ten Commandments statues in public buildings.

Because the bill sanctions Moore's situation, it might have been treated as a self-serving proposal, referred to committee, and never heard of again. In an interesting strategic move, however, the bill's sponsors have folded in a general provision that would prohibit U.S. courts from relying on foreign states or international organizations in their rulings. With this secondary focus, the bill is being spun as a general curb on judicial activism, a favorite conservative bogeyman, and it has garnered support from areas outside the Bible Belt, particularly from isolationists. The Senate Judiciary Subcommittee on the Constitution has already held a hearing on religious freedom, at which Moore testified about the Constitution Restoration Act, and the chairman of the House Judiciary Committee has pledged to convene a hearing specifically on the legislation sometime this year before the end of this Congressional session.

THE ACT ISN'T LIKELY TO LAND ON PRESIDENT GEORGE W. BUSH'S DESK for signing any time soon, however, as it must face down opposition from both secular and religious opponents. Most Americans hear mainly from the ACLU or from Americans United for Separation of Church and State when controversies over posting the Ten Commandments or allowing "under God" in the Pledge of Allegiance arise. But many religious groups, particularly Baptists, have a long history of protecting the wall between church and state, as much to protect churches from state influence as to shield the state from religion. J. Brent Walker, the head of the Baptist Joint Committee on Public Affairs, an arm of the Baptist Church that works on religious liberty issues, testified in Congress recently. "The best thing government can do for religion is to leave it alone," he said.

While many religious observers are troubled by the danger that religion will be cheapened by entangling it with federal government, others fear that the promotion of religion here will always lead to the promotion of some type of Christianity. "Religious majorities often do a pitiful job of protecting the rights of religious minorities," Rogers said. "There is a certain amount of constitutional approval for generic broad recognitions of God, but that approval is measured in inches and this bill would stretch it to miles and miles."

This argument does not sway Aderholt. "Unfortunately, you do sometimes have situations in which people aren't respectful of other people's faiths," he conceded. "But I don't think that is a good reason to completely take away the acknowledgment of God."

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