EDITOR'S NOTE: This story is updated from the version released June 8.
WASHINGTON (ABP) — Former judge Roy Moore and church-state expert Brent Walker squared off in a lively debate about religious expression and the First Amendment June 8 during testimony before a congressional subcommittee.
Moore, Walker and others testified before the Constitution subcommittee of the Senate Judiciary Committee. Sen. John Cornyn (R-Texas), the panel's chairman, called the hearing to discuss what he called “hostility to religious expression in the public square.” But critics said the hearing was an election-year ploy to showcase the deposed judge.
Alabama officials last year removed Moore as chief justice of the state Supreme Court after he defied a federal judge's order to remove a Ten Commandments monument. Moore had placed the monument — without the knowledge of his fellow justices — in the rotunda of the state judicial headquarters. Although two federal courts ruled that the monument violated the First Amendment, Moore claimed both the Alabama and federal constitutions require him to “acknowledge God” via such a display.
Before the Senate subcommmittee, Moore said the debate over religious expression in the public square is not a debate between those who are “for God or against God. It's between those who understand the First Amendment and those who do not.”
Moore said the First Amendment was designed so people — including state officials — could “acknowledge God according to the dictates of their conscience” without interference from the federal government. “The issue is the government's interference with the right of the people of these states to acknowledge God,” Moore said.
He said the First Amendment's ban on government establishment of religion did not apply in his case because his monument was not an establishment of religion and wasn't erected by the federal government. He said the nation's founding documents allow — even require — government officials to “acknowledge God.”
“We have simply confused … the acknowledgement of God with religion,” Moore said.
But Brent Walker, executive director of the Baptist Joint Committee on Public Affairs, said Moore's action to set up the Ten Commandments monument is hard to understand as anything other than an establishment of religion.
Moore, himself a Baptist, accused Walker of “hypocrisy” for leading a Baptist group but saying “that a public official cannot represent God.” But Walker denied saying or believing that.
Walker noted that, while public officials can allow their belief in God to influence their actions in many ways, “What you can't do is put up a monument in the middle of the courthouse that starts by saying, 'I am the Lord your God, who brought you up out of the land of Egypt. You shall have no other gods before me.'
“If that's not establishing a religion, I don't know what does,” he continued. “That's not an acknowledgement; that's an establishment.”
Before Moore began his testimony, one of his home-state senators who sits on the subcommittee took a point of personal privilege to praise the deposed judge. “I wish you were still on the court,” Sen. Jeff Sessions (R-Ala.) told Moore. “I'm sorry things worked out the way they did.”
But Barry Lynn, executive director of Americans United for Separation of Church and State, said, “The ongoing attempts of some legislators to lionize Moore's lawbreaking is an embarrassment to the nation.” In a press release distributed at the hearing, Lynn added Moore “showed blatant and utter disrespect for the Constitution of the United States and the rule of law.”
During his testimony, Moore referred to an 1854 document from the U.S. House of Representatives declaring that the federal government's employment of chaplains was not a violation of the First Amendment's ban on government establishment of religion because a religion must have a creed, ministers and ordinances. His monument didn't have such things, Moore said, so it was not a religion.
After the hearing, Moore was asked if that meant that a non-creedal faith — such as Hinduism, Islam or even his own Baptist tradition — would not be a “religion” under his understanding of the Constitution.
“It's not a religion as defined under the First Amendment,” Moore told Associated Baptist Press. However, he said, his understanding of the nation's founding documents gives Americans — including public officials — the right to practice any of those faiths if it is their way of acknowledging God.
Moore has become immensely popular in his home state and among religious conservatives nationwide for his Ten Commandments crusade. Asked by reporters if he will seek to capitalize on his popularity by running for higher office, all the judge would say was, “I have no plans at this time to run for office.”
The hearing also featured several other experts on church-state issues, as well as witnesses who testified about having their religious freedom violated by state officials. They included Nahsala Hearn, a 12-year-old Muslim from Muskogee, Okla. Last fall, Hearn was suspended from her school for refusing to remove her hijab — a head covering that observant Muslim women wear. School officials said it violated the school's policy against wearing hats or bandannas.
The hearing also featured Barney Clark of Balch Springs, Texas. Clark and other members of the town's senior-adult center fought town and state government officials' attempts, beginning last year, to outlaw group singing of gospel songs, blessings at meal times and other religious practices at the city-run center.
Cornyn and others pointed to these incidents as evidence of widespread hostility to religious practice by public officials. Testifying about a bill he has introduced to strip federal courts of their ability to adjudicate certain cases involving religious expression, Sen. Richard Shelby (R-Ala.), said, “The list of legal decisions abridging our right to acknowledge God is far too long.”
But Sen. Russell Feingold (D-Wis.), the subcommittee's ranking minority member, asked the witnesses if the federal courts don't also provide remedies when government violates the religious freedom of individuals such as Hearn.
“I don't believe such widespread hostility [to religious expression] exists,” Feingold said. “Despite the title of this hearing, I believe the First Amendment is alive and well in this country, as is religious expression.”
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