At the American Cause’s “Voices for the Unborn” conference October 4, HUMAN EVENTS Associate Editor Joseph A. D’Agostino interviewed Alabama Chief Justice Roy Moore. Moore, who addressed the conferees, has become a hero to many constitutionalist Americans by standing up to federal courts who have ordered the removal of his stone monument of the Ten Commandants from public display in the Alabama supreme court building. Moore is currently attempting to have the U.S. Supreme Court reverse lower federal court decisions that have forced the removal, at least for the time being. Moore argues that Americans are not obliged to obey the unconstitutional decisions of tyrannical judges who promote the rule of men rather than the rule of law. Right now, Moore has been barred from acting as a justice until November 12, when a hearing will be held to determine his future.
As we were talking about returning religion to the public square, a lot of people, even I think a lot of conservative-minded Americans, have this idea that “Well, religion just doesn’t belong. It just doesn’t belong, and that’s not America. And even if it somehow was America at one time, we’ve got so many people here now who are of various different religions, no religion.” Aren’t you part of a dangerous movement here to try to return religion to the public square in a country that can no longer operate that way?
ROY MOORE: Well, that’s a very good question. That’s probably the best question you could ask because there is so much confusion. The first thing you’ve got to understand is, “What is religion?” Now, when you used the term “religion,” you were probably talking about the varied faiths around the world that are appropriately called worldwide religions, Buddhism, Hinduism, Taoism, Islam, so forth. But the religion that is talked about under the 1st Amendment to the United States Constitution had a specific explicit definition given by James Madison, George Mason, Joseph Story, various places we find the definition of religion, to include the United States Supreme Court, in the Memorial Remonstrance. It was the duties we owe to the Creator and the manner of discharging it. It was the fact that there was a certain relationship between the God of the Holy Scriptures and man that was outside interference by government. That’s why it is contained in the 1st Amendment to the United States Constitution, that Congress shall make no law respecting the establishment of religion or prohibiting the free exercise thereof. Now, so basically what we see is that our forefathers understood that there was such a relationship between God and man that was outside government interference, and that relationship can be demonstrated in a number of ways. If a person worships a rock, or a tree, it’s still something government can’t interfere with. You can’t interfere with the way you worship God. If you worship God by worshipping a cow, then that’s your business, but it’s given by God. Joseph Story, a Supreme Court justice for 34 years, in writing the Commentaries on the Constitution of the United States and in addressing the 1st Amendment, said this: “The rights of conscience are indeed beyond the reach of human power. They’re given by God and cannot be encroached upon by any human authority without a criminal disobedience of the precepts of natural as well as revealed religion.” He also said, “It yet remains a problem to be solved in human affairs whether any free government can be permanent where the public worship of God and the support of religion constitute no part of the policy or duty of the state in some form or shape.” Now, in those sentences, what is he saying? He’s saying we should be able to worship God publicly because your government will not remain free if you do not. Is that unfair to a Buddhist or a Hindu? Absolutely not, because that relationship they have with God is outside of government interference, because it’s given by God. To acknowledge the God of the Holy Scriptures is not un-American, it is precisely what we must do to recognize the organic law of our country, which is the Declaration of Independence. The Declaration of Independence is described by the United States Code, Annotated, as “organic law.” And what’s organic law? That means that if that organic law is destroyed, we become a different country. And certainly when this country was founded, and for 180, nearly 200 years, there was no question about acknowledging the God of the Holy Scriptures as the fundamental basis of our law and our morality. It’s only since the 1960s that we’ve been confused to believe that acknowledging God is somehow unfair to other faiths. . . . Indeed, the moral questions we face are all grounded in Scripture and recognized in case law. For example, adultery. Adultery is prohibited in many states as it is in Alabama…Why? Well, thou shalt not commit adultery, murder, theft, false witness. . . .
It seems to many people that what’s really going on here is a fanatical anti-religious bigotry, which is, if you say that your beliefs are based on secular principles, if you’re a secularist, you can use them to legislate, you can use them to rule from the bench, you can use them for whatever you want when it comes to the government. But if you say your beliefs are religious, a religious imperative, or Scripture or something like that, that’s impermissible. Is that what’s going on?
MOORE: I think that’s what’s going on. I think what’s going on is intruding into the mind because your ruling is judged by the law, not by what you believe. And that’s the problem in our country. In 1961, there was a case called Torcaso v. Watkins, in which a man named Roy Torcaso, a public notary in Maryland, refused to take the oath, “so help me God,” and the court said that he wasn’t required to. In other words, to hold public office he wasn’t required to acknowledge God, which the Maryland law said you were required, to take an oath to God. Now, 40-something years later, if you acknowledge God, its somehow demonstrates an unfitness to hold office, and that’s exactly what’s happening in this case in Alabama. The court inquired, not into my actions, putting the monument there-they even said that the placement of the monument in public buildings wasn’t necessarily prohibited-but when you acknowledge the Judeo-Christian God who gave the Ten Commandments, it somehow violated the law.
So the court specifically didn’t base its ruling against the monument of the Ten Commandments on the actions involved or whatever, but on your personal beliefs? And that’s explicitly what they said-they didn’t hide that?
MOORE: No, no. And that’s what we’ve got in the United States Supreme Court in the petition on a writ of certiorari. They based their actions on things I had said about my faith, on representations that I acknowledged God, not what the stone portrays. In fact, the judge himself said and I’ve got the order of the court, he said that the Ten Commandments were even considered to be the foundation for American law, but he then went on to say that when you acknowledge the Judeo-Christian God, you cross the line between the permissible and the impermissible.
So the court actually said that putting that monument, the exact same monument that you put in the rotunda of the Alabama Supreme Court building, could have been okay if you personally hadn’t said some of things you had said?
Was there something in the inscription of the monument that they objected to?
MOORE: No, no. . . . But they have been saying you can [use religious language] as long as you don’t mean it. I can quote the language. They’ve said, [former U.S. Supreme Court Justice] William Brennan said, “I frankly do not know the proper disposition of all the mottos of our public life, such as ‘In God We Trust,’ ‘One Nation Under God,’ and ‘God Save The United States and This Sovereign Court,’ except to say these mottos are consistent with the establishment clause, not because they’re factos de minimis, but because they’ve lost all true religious significance.” Now what does that mean? That means that, if you do something and I’ve got a rule against it, I can let you do it-not because it is just a small violation-because it really doesn’t mean anything. . . .
And what is the status of the case now?
MOORE: Well, the status of the case now, that’s very good. Because a lot of people think the court has already ruled on it and they haven’t. We filed, as of, not this past Friday [October 3], the Friday before last, filed a petition for writ of certiorari before the Supreme Court. That is a petition to ask the court to hear this case. Okay. Now, they can grant it or deny it. But we also have in front of the court a writ of prohibition and mandamus saying that the judge’s order was unconstitutional and illegal, and that is one of the bases for this case, that what the judge did himself is wrong. He came in and said you can’t acknowledge God, but the Alabama constitution says that we established our justice system upon God, “invoking the favor and guidance of Almighty God.” The question is, does a federal court have the authority to come in and tell the state of Alabama on what basis they can establish a justice system? Absolutely not, it is a violation of the 10th Amendment and the 10th Amendment says, the powers not delegated to the United States by the Constitution or prohibited by it to the states are reserved to the states, respectively, or to the people. In other words, if there is a power not given to the United States by the Constitution nor prohibited by the Constitution to the states, it belongs to the state. . . . I’m the chief administrative officer. I am the one that must ensure that the justice system is upheld. I must acknowledge God. When a judge says you can’t acknowledge God by the display of the Ten Commandments, by In God We Trust, or by whatever, when he says that, he subverts our justice system, he has no authority to do that, especially at the same time, and you can see what is going on here, in front of the federal courthouse is a bust of the Greek goddess Themis between two scales of justice. This judge [who decided the monument case] said in his order and you are going to see it, that he couldn’t define the word religion, that the judge couldn’t, didn’t have the expertise, and he thought it “dangerous and unwise” to define religion. Do you know what that means? Do you know what that means? Let’s say you are walking down the creek with your wife or your girlfriend, and you pick up a stick and a conservation officer comes up to you and says, “Where’s your license to fish?” You say, “I am not fishing. I picked up a stick.” He says, “I think you’re fishing.” “I ain’t got a line, a hook, sinker, bait. What kind of fishing?” He says, “Come before the judge.” You go before the judge. You tell the judge your story. He says well, “You see here. I don’t really know what this ‘fishing’ means, but you do a have stick and I think you probably could beat a fish in the head and kill it, and therefore I am going to have to fine you $500 and give you 60 days in jail.” Would that be a lawful order? Absolutely not. It wouldn’t be a lawful order. So, this is what the judge said. When the judge enters an order, on the statute that he can’t define, he enters an unlawful order. When he enters an unlawful order, when judges take the law in their own hands, they become tyrants. That is the historical definition of tyranny. And if I were to condone that, I would be condoning that conduct which is tyranny. And therefore, it’s not that I’m disobeying a lawful order, I’m disobeying, or failed to obey an unlawful order.
How come your fellow Alabama Supreme Court justices did not back you up?
MOORE: Because they would rather give up their duty under the constitution to uphold their oath than risk contempt of court. Now of course the judge did not find me in contempt of court. That’s the point that makes me laugh. They would rather obey a court order even if it is unlawful, than to do their duty, in my opinion. . . . The amazing thing is the only law that’s involved is the 1st Amendment. The 1st Amendment’s purpose was to allow the acknowledgement of God. . . . It wasn’t forbidden for the states but now the federal government comes down and tells a school teacher or a municipal councilman that when you do something, you’re Congress making a law, respecting the establishment of religion. Now, let me ask you this. What is a law? If I put this there, have I made a law? No matter what’s in it, have I made a law? What if it’s got pornography on it or if it’s got a visible picture on it, have I made a law?. . . But you see, we’ve reached a point in our jurisprudence to say that a monument on a floor is a law.
I wonder about the solution to these things.
MOORE: The solution is very simple.
Replace the entire judicial branch?
MOORE: Well, the solution to the thing is education. Going back and learning what judges are supposed to do. The role of judges and when you learn what they are supposed to do, which is interpret the law, then you say how do you interpret the law? You interpret the law by interpreting the words of the statute. Not just making up as you go and saying I don’t know what the words mean but this is what I feel. Let me give you an example. 1858, Dred Scott. That’s where they said that slaves were property. Well, that’s what the court said, but one of the justices dissented, Justice Curtis, two dissents, I believe. And Justice Curtis dissented and said, “When a strict interpretation of the Constitution according to the fixed rules which govern interpretation of laws is abandoned and the theoretical opinions of individuals allowed to control its meaning, we have no longer a Constitution. We’re under a government of individual men who for the time being have the power to declare what the Constitution is, according to their own views of what they think it ought to be.” That’s exactly what we’re doing today.
You know it seems that whenever the courts do some wacky thing, that conservatives have said, “Well, what we’ll do is amend the Constitution.” Right now there’s a big drive to try to stop same-sex marriage. But the fact is if we keep trying to amend the Constitution every time they do something wacky, we’ll never win because it is too hard. What about some comprehensive solution like getting rid of the incorporation doctrine? That might take a constitutional amendment, but that will be one amendment that would eliminate federal judicial interference in so many areas. Is that a good idea?
MOORE: I haven’t explored that. . . . I think if Congress limited the jurisdiction of the courts, that would be another thing under Article III. I think that personally I would like to see Congress take this monument which they’ve declared is establishment of religion, a law made by Congress, and put it in the Capitol rotunda. The rotunda of the Capitol building. It’d show them Congress doing an act is not Congress making a law. Common sense. Who can say Congress made a law when they put a monument there? Who can say a city councilman is making a law by something on their seal?
Is there any interest from congressmen to take this monument and do that?
MOORE: Well, we have made the offer. It’s up before Congress.
No response yet?
MOORE: No. . . .
And you don’t support the Federal Marriage Amendment against same-sex marriage?
MOORE: No, I didn’t say I didn’t support it. I think that basically what you said, not trying to confuse it, but if you attack all these problems piecemeal you never get to the root problem. What is the root problem? Root problem is acknowledging God as the source of our morality. You see, are you going to amend it with regards to sodomy? Amend it regard to abortion? Going to amend it with regard to school prayer? Are you going to amend it to this? No, that’s the problem we’re put into by the courts. We’re trying to amend the Constitution, amend our moral bases back into the Constitution piecemeal. Do I object? No, I think that marriage is a sacred thing, we are in danger of losing it so I can’t disagree with an amendment except on its basis we can’t do, it’s not the proper way to get back our morality. You don’t amend our morality back. I can’t disagree with the motives behind the amendment. . . . Washington himself in September 1776 said the same thing. He said whatever may be conceded to the influence of refined education or minds of superior structure, reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle. We’re just seeing national morality not prevailing. Exclusion of religious principle. . . .
One way to frame this debate is to define religion differently and define secular humanism as a religion and saying what the courts and leftist elites in general want to do is impose their religion of secular humanism on the rest of us who are not secular humanists. But I noticed you did not frame it that way.
MOORE: No, I do not frame it that way because I think you do that I think you still disassociate, someone has got to be sovereign. You define secular humanism as religion what, who’s sovereign?
MOORE: Well, man is secular humanism. So you just define yourself as sovereign?
Isn’t that what they do? They view man’s will-
MOORE: That’s what they do. Who did our forefathers define as sovereign? God. And religion was defined, wasn’t it? Take my word for it. It was defined as the duties we owe to the Creator and the manner of discharging them. Verbatim. Over and over and over. . . . You don’t find religious diversity in Saudi Arabia, do you? Why is that? Because it is not the same God. The God of Islam is not the same God of the Holy Scriptures, period. Some people might trace it back through Abraham in recognition of some of the common forefathers, but that God does not give freedom of conscience, whereas our God does. That is why it is very important to recognize the God of the Holy Scriptures, and besides that it is not wrong. . . . I’m confronted with all kind of people who say well, they [the Founding Fathers] didn’t know which God it was. That’s absolutely stupid. I mean, its absolutely, you feel like you’re in a, it’s absolutely ridiculous to argue that point. It’s a modern argument that doesn’t even fit legal history. When the Mayflower landed they said we’ve undertaken the voyage for the glory of God and the advancement of the Christian faith. . . . Benjamin Franklin and Thomas Jefferson both proposed seals for the United States. One, Moses leading the children of Israel through the wilderness, guided by a cloud by day and a pillar of fire by night, and the other showing Moses holding the staff over the Red Sea. Which God? And those were the controversial figures they point to. . . .
Now, what do you think your personal future is going to be? Are you going to get reinstated? Go back to being chief justice and stay there? Or what’s going to happen?
MOORE: Don’t know. We’re going to find out November 12. It’s the day they’ve got set for the hearing.
Who’s going to hear that?
MOORE: The [state] Court of the Judiciary, consisting of lawyers, judges, private individuals.