Dear Alumni and Friends of Boston College Law School:

There are several lessons for the legal community, and for Boston College Law School, in the brouhaha provoked by Roy Moore over the Ten Commandments. Moore was elected Chief Justice of the Alabama Supreme Court in November of 2000. The following year he installed a granite monument about the size of a washing machine in the rotunda of the Alabama State Judicial Building. Inscribed on it are the Ten Commandments. Moore said he did it to fulfill a campaign pledge “to restore the moral foundation of law.”

The rest of the story is predictable. Three lawyers who practice in the building sued to remove the monument, claiming that it offended them and made them feel like “outsiders.” A federal district court in Alabama concluded that Moore had violated the Establishment Clause, and the Eleventh Circuit agreed. Then things got a little sticky. Moore refused to obey the district court’s order directing him to remove the monument. His eight colleagues on the Supreme Court took the matter away from him, and the removal went ahead as ordered. A state Judicial Inquiry Commission suspended Moore, and the Alabama Court of the Judiciary is currently considering a complaint of judicial misconduct against him. Moore himself has asked the United States Supreme Court to review the Eleventh Circuit’s decision.

I think that Justice Moore did the wrong thing in putting up his monument, and compounded the wrong by refusing to take it down. But I think so for reasons different from the ones I have seen in the papers. The judge’s actions show too little respect for religion, not too much.

Consider first the erection of the monument. The standard objection (we hear it in crèche cases and school prayer cases and debates about the pledge of allegiance) is that this was unconstitutional because religion has no place in law or politics. The plaintiffs complained that it made them feel like “outsiders.” You get the impression that the Establishment Clause was designed to protect people who are offended by religious practice against cultural oppression by the moral majority. In order to guarantee equal treatment of all citizens, this account holds, we have a regime of secular liberalism where religion is at best a taboo subject, at worst a bad influence.

But the standard objection is a mistake. No group had a more important role in adopting the Establishment Clause than Baptists, and they wanted it for their own sake, not for their agnostic friends. “[I]f civil Rulers go so far out of their Sphere as to take the Care and Management of religious affairs upon them,” said a Baptist Declaration in 1776, “Yea . . . Farewel to ‘the free exercise of Religion.’” The worst thing about an Establishment of Religion is that it authorizes some government official to tell me how to pray.

There was a whiff of this in Justice Moore’s two-and-a-half-ton display. His Ten Commandments were taken from Exodus 20 in the King James bible. Roman Catholics favor Deuteronomy 5 in the Jerusalem bible. The numbering and content of the two versions differ slightly. This might seem petty, but Protestants and Catholics fought over the differences for a century in public schools. Catholics did not object to using the Protestant version because they had a low opinion of religion. Rather, what they wanted was to follow the translations and formulae approved by their own religious leaders. Abington School District v. Schempp put an end to school bible reading in 1963.

Justice Moore’s monument stirs up this dispute again. And now it’s not just Catholics who might object. America is a more diverse place than it was forty years ago. Today we can imagine devout Muslims who might prefer to see the Five Pillars of Islam rather than the Ten Commandments or Buddhists who would chose instructions from their own faith.

Consider now Justice Moore’s refusal to take his monument down. It is a serious thing for a judge to refuse to obey a federal court order. The rule of law depends upon a social commitment to respect the outcome of judicial proceedings even if we disagree with the result. Justice Moore’s behavior violates that commitment. It is also a very high-profile case of bad example. One such act of disrespect can undermine a year of effort at Boston College Law School to teach our students the importance of obeying the law. A judge cannot behave this way and remain a judge.

Let me now say three things that are beside the point in this controversy, but closely related to it. The first concerns Moore’s campaign pledge “to restore the moral foundation of law.” It would be a First Amendment mistake, and a bad political scheme, to forbid politicians to speak to people at the level of their truest convictions.

Alabama’s governor is a man named Bob Riley. While Justice Moore was campaigning for the Ten Commandments, Governor Riley was campaigning to raise property taxes to collect more revenue from logging companies. The existing tax structure, relying as it does on income and sales taxes, falls hard on the poor. Riley’s argument against this structure (it was unsuccessful) had a familiar sound: “According to our Christian ethics,” he said, “we’re supposed to love God, love each other, and help take care of the poor.” Was he guilty of the same offense as Roy Moore? I think not. There is a difference between building a religious shrine and proposing religious reasons for doing a religiously neutral act (taxing the rich to help the poor). Governor Riley’s speech appealed to Christians and not others, but he probably had other arguments for the rest of the electorate.

The second point is about the federal court order to take the monument down. I think this order was right on the merits. Justice Moore disagreed. If he felt he could not comply with a court order, he should have resigned his post rather than disobey. Let us suppose that his reasons were religious rather than legal. He might have thought, for example, that God’s law should always trump human law, and that no matter what the First Amendment might say, it would be wrong (sinful) to remove the Ten Commandments. I can sympathize with this. If I were a federal judge I would have religious scruples about sentencing a defendant to death even though federal law might require me to do so. I do not think that when you take public office you should subordinate your religious obligations to your civic ones. The thing is, when you find yourself in a jam because your duties conflict, it is wrong to solve the problem by subverting the legal order.

The third point is about Boston College Law School. We live in a pluralistic society. In a way that’s what the Ten Commandments flap is about. There are many who wish that America were a Christian, or more ecumenically, a Judeo-Christian nation, but we are not. Americans come in all shades of belief, and the Establishment Clause states that the government should not privilege one shade over another. This does not mean—as the case of Governor Riley illustrates—that we must purge all discussion of religious principles from the public sphere. It does mean that we must respect our differences from one another.

The respect for differences extends to institutions as well as individuals. It is one of the glories of pluralism that we cherish religiously affiliated law schools like Boston College and Georgetown, Cardozo and Brigham Young, alongside secular schools like Virginia, Kentucky, and Duke. At Boston College we have a chapel where we celebrate daily mass. At a state school like Virginia that would be unconstitutional. At Boston College we are free to raise questions, arguments, and points of view that would be uninteresting, impolite, or out of order at Stanford.

These differences are part of our appeal; we are not like every other elite law school. But to come back to my original point, neither is the state of Alabama like Boston College. The constitutional arrangement that Roy Moore violated forbids state officials to use their offices to do some of the things we do here. Pluralism has two sides: public limits and private freedom. They are related to one another. Both arise out of a respect for our differences. Ignoring one side of that balance poses a threat to the other. If we do not respect differences in public life, we probably do not understand the importance of protecting them in private institutions.

Sincerely,

John H. Garvey