By Bryan K. Fair

Those persons who have been following Chief Justice Roy Moore’s legal showdown over his installation of the Ten Commandments monument in the rotunda of the Alabama Judicial Building might be surprised to read Article 1, Section 3 of the Alabama Constitution:

That no religion shall be established by law; that no preference shall be given by law to any religious sect or society, denomination or mode of worship; that no one shall be compelled by law to attend any place of worship or for maintaining any minister or ministry; that no religious test shall be required as a qualification to any office or public trust under this State; and that the civil rights, privileges and capacities of any citizen shall not be, in any manner, affected by his religious principles.

Alabama law is clear. No religion shall be established; no preference shall be given by law to any sect or denomination. There is no state’s rights defense for Chief Justice Roy Moore’s actions.

Not only does Alabama law prohibit religious establishments, the federal Constitution does as well. The First Amendment, made applicable to the states through the Fourteenth Amendment, prohibits laws respecting an establishment of religion. The U.S. Supreme Court has said this prohibition prevents government actors from giving preferences to one religion or all religions. The Court has warned that state actors should not sponsor religious activities, give direct financial aid to institutions that teach religion, or involve themselves officially in the affairs of religious institutions.

More important, Article VI of the U.S. Constitution provides that:

This Constitution, and the Laws of the United States which shall be made in pursuance thereof and all Treaties made, or which shall be made under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, any Thing in the Constitution or Laws of any State to the contrary notwithstanding.

Thus, even if Alabama’s law did not prohibit religious establishments and religious preferences, the U.S. Constitution is supreme and judges of each state are bound by federal constitutional law. There is no exception for Chief Justice Moore. No judicial officer is above the law.

One will find little, if any, legal support of Chief Justice Moore’s activities regarding his monument. There is no support in Thomas Jefferson’s Bill for Religious Liberty. There is none in James Madison’s Memorial and Remonstrance. Although both men were personally religious, they supported religious liberty for all. They believed a true religion did not need the support of government; that alliances between religion and government would corrupt both; and that each person should be free to decide which, if any, denomination he would support. For them, religion was a private matter, protected by keeping government out of it.

Like Jefferson and Madison, we must all be fierce champions of religious liberty. In our constitutional democracy, all religious believers of whatever creed, as well as all non-believers, must stand equally relative to our state and federal governments. There is no religious caste under United States law. Religious liberty means no government official can declare what is orthodox in religion. No judge can legally proclaim his religion as the supreme law of the state or nation. A government of many people from throughout the world, with many diverse religions and with many non-believers, cannot have a declared religion. Chief Justice Moore can exalt God as a private citizen, but cannot do so when exercising powers derived from all the people of Alabama, including many who do not subscribe to his creed. His actions are antithetical to the rule of law and to religious equality.

Some commentators believe that Chief Justice Moore has staged this legal drama for personal gain or perhaps higher office. He has garnered international coverage as the Ten Commandments Judge. Whatever his motive, few can miss his disregard for the laws of Alabama, the United States Constitution, and the federal courts. Surely, he is not above the law.

Chief Justice Moore’s alleged crisis of conscience is of his own creation. If he could not uphold the laws of Alabama and of the United States, he should not have taken his oath of office. If he does not believe in religious liberty and religious equality, he should not wear the robe of a judge elected to serve all the people of Alabama.

The eight Associate Justices of the Supreme Court of Alabama, all who are deeply religious persons of different faiths, have been able to set aside their religious beliefs and apply the laws of the people of Alabama. Finally, they have overruled Moore’s decision to install his monument, directing its removal from the rotunda. Courage aside, they, too, were bound by state and federal law.

Their unanimous action will suspend the two year saga and the immediate threat of fines against the state. However, the broader constitutional issues remain unresolved because Chief Justice Moore and others around the country have pledged to continue this fight for God and because the United States Supreme Court has avoided recent opportunities to decide this controversy. As with all the other great legal disputes, the Court will not be able to remain on the sidelines much longer.

Bryan K. Fair is the Thomas E. Skinner Professor of Law at The University of Alabama School of Law.