The JCPA mission statement recognizes that “the Jewish community has a direct stake and an ethical imperative to assure that America remains a country wedded to The Bill of Rights and committed to the rule of law, a nation whose institutions continue to function as a public trust.” An important national conversation continues about what actions are permissible under the First Amendment’s Establishment Clause. However, some opponents of church-state separation, including former Alabama Chief Justice Roy Moore and his supporters, have gone to great extents in their activities and are, themselves, significant threats to our cherished system of checks and balances and the rule of law.
Moore was removed from office by the Alabama Court of the Judiciary for his steadfast refusal to remove from the Alabama Supreme Court building a massive stone monument to the Ten Commandments that he had moved sub rosa into the building’s rotunda. The monument stood alone and was not part of a larger secular display. Federal Courts repeatedly ruled it violated the Establishment Clause, but Moore refused to remove the monument.
Chief Justice Moore defended his actions by claiming he was obeying God’s laws which he believes overrode or nullified the federal court decisions. Even more alarming than Moore’s flagrant abandonment of his obligation to demonstrate fidelity and obedience to the rule of law was the response of Congress to this case. The House of Representatives passed language which would prohibit the expenditure of any federal funds to enforce the decisions of the federal courts in the monument case. If passed by the Senate, the Congress would be attempting to nullify the decision of the federal courts on a constitutional issue. This threatens the very foundations of the doctrine of separation of powers of the constituent branches of the federal government, as established by the Constitution and confirmed in the landmark United States Supreme Court decision of Marbury v. Madison. It would further encourage elected officials and judges to ignore the rule of law. It could only be imagined how far the Civil Rights movement would have been set back had Congress prohibited President Eisenhower from sending troops to Little Rock to enforce the federal court order desegregating that City’s schools.
The Jewish experience teaches us the importance of respect for the law. Upholding the rule of law does not conflict with the validity and worth of individuals engaging in civil disobedience to oppose unjust laws and to change societal norms and attitudes. It is not appropriate for persons who are elected or appointed to uphold and enforce the law to use their positions of power to advance their own religious or moral agenda. Instead, if they believe a law or ruling is wrong and want to oppose it extra-judicially, they should resign or recuse themselves from the particular matter in question, and then oppose the law or ruling as an ordinary citizen.