Moore falsely claimed Supreme Court ignored "textual definition" of First Amendment in Ten Commandments case

››› ››› JEREMY SCHULMAN

On Fox News' Hannity & Colmes, Roy Moore, former chief justice of the Alabama Supreme Court, falsely claimed that the U.S. Supreme Court's recent ruling that the displays of the Ten Commandments in two Kentucky county courthouses are unconstitutional "does not address the textual definition of the words in the First Amendment."

In fact, Justice David Souter's June 27 majority opinion in McCreary County v. American Civil Liberties Union of Kentucky explicitly considered whether the First Amendment provides a "textual definition" for its Establishment Clause, which guarantees that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." But Souter quickly concluded that the Constitution provides no such "textual definition":

The First Amendment contains no textual definition of "establishment," and the term is certainly not self-defining. No one contends that the prohibition of establishment stops at a designation of a national (or with Fourteenth Amendment incorporation, Cantwell v. Connecticut, 310 U. S. 296, 303 (1940), a state) church, but nothing in the text says just how much more it covers. There is no simple answer, for more than one reason.

The prohibition on establishment covers a variety of issues from prayer in widely varying government settings, to financial aid for religious individuals and institutions, to comment on religious questions. In these varied settings, issues of about interpreting inexact Establishment Clause language, like difficult interpretative issues generally, arise from the tension of competing values, each constitutionally respectable, but none open to realization to the logical limit.

The First Amendment has not one but two clauses tied to "religion," the second forbidding any prohibition on the "the free exercise thereof," and sometimes, the two clauses compete: spending government money on the clergy looks like establishing religion, but if the government cannot pay for military chaplains a good many soldiers and sailors would be kept from the opportunity to exercise their chosen religions.

The court ultimately ruled that the Ten Commandments displays are unconstitutional "[w]hen the government acts with the ostensible and predominant purpose of advancing religion." Moore was the only guest who addressed the decision on the show. Co-host Alan Colmes introduced Moore as "a man who led his own fight to keep a Ten Commandment monument in the Alabama State courthouse," but neither he nor co-host Sean Hannity mentioned that Moore was removed from the bench by Alabama's judicial ethics panel after he ignored a federal court order to remove the monument from his courtroom.

From the June 27 edition of Fox News' Hannity & Colmes:

MOORE: Well, it's very true. The first thing our forefathers did when they wrote the First Amendment was to declare a day of public thanksgiving and prayer to God. The first thing Congress did was vote in chaplains. Throughout our history, we have acknowledged God. But you know, what this opinion does is it does not address the textual definition of the words in the First Amendment.

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