Chief Justice of the Alabama Supreme Court Roy Moore is in the headlines again, this time for ordering probate judges in the state to disregard Federal Court orders to perform homosexual marriages. You might remember his name from his 2003 refusal to remove a monument to the Ten Commandments from Montgomery’s Supreme Court grounds. His is far from the only voice seeking to build a secular society on the Ten Commandments. After all, the U.S. Supreme Court building contains not one but two statues of the ancient lawgiver, both prominently featuring the stone tablets that were his gift to the Israelites and by implication to all of us. So we might be forgiven for asking why Judge Moore’s efforts to place God’s law front and center have produced so much heat from supporters and detractors. Do religionists think we need laws against stealing, killing, and libel? Do detractors think we don’t need such laws? There is much more here than meets the eye.
If we examine the commandments themselves, we find immediately a formal problem, as the relevant passages in Exodus are broken by various denominations in different ways, so that Orthodox Christians, Talmudic Jews, Roman Catholics, Lutherans, and Calvinists literally have different sets of the Decalogue. So the first challenge might be which actual sentences to enact into law. The Supreme Court neatly divides that baby by depicting the iconic tablets and an equally iconic Moses inspired by Michelangelo, but leaving the tablets conveniently blank. So the first question to pose to Judge Moore would have to be which set would you engrave into law? But this is not insurmountable. A generic formulation could easily be put together that gets to the gist of every denomination’s values, provided none is too insistent on a literal reading of their own Scripture. That was meant as a joke.
Once we prepare to chisel them in stone, we face immediately our second challenge. Laws against murder, theft, libel and slander: these are easy. But what do we gain by erecting prohibitions against these offenses? We already have those enshrined in current law. We hardly need God’s thunder to convince us that these acts are wrong. We can reason out the harms these violations do to a civil society, so we might in the interests of saving taxpayer dollars let the stonemason leave these aside. But in preparing the rest, we face problems of habeas corpus. For instance, consider the “coveting” proscriptions that make up either one or two commandments, depending on your denomination. As actually coveting is a sin committed in the darkness of the twisted heart, it would be a challenge to prove these a crime in a court of law, so again in the interest of avoiding expensive and unwinnable cases, we might instruct our stonecutter to leave these off our tablets as well.
So now we are down to five or six commandments (again depending on denomination), and here we come to the real meat of the matter. It is perfectly feasible that courts by precedent or reference to codified law could define acts that violate these remaining five or six commandments. So let us put them up in the public square. For instance, adultery is easy and is, in fact, considered as a crime in military codes of justice, so we could simply criminalize it in state law in the same language, which would merely resurrect laws that once were on the books and have since been jettisoned in our secularized society. Sadly, that law alone might fill courtrooms to overflowing. More crowds would follow other criminalizing. Dishonoring the Sabbath might be a bit tougher to codify since we’d have to either specify whether the Sabbath falls on Friday, Saturday, or Sunday– which would incommode Jews, Seventh Day Adventists, or other Christians — or alternatively we could carefully define what would constitute “dishonor” regardless of which day one attends religious service. I assume citizens might be arrested for failing to attend their registered religious services, but then lawyers might have to litigate whether those sleeping or demonstrating lack of attention in these services meet the legal definition of “honoring.” We used to have laws against cursing, so a little research should have no trouble reminding the citizenry of which words cross the line into “in vain” territory and which ones keep us safely within the law. I can see some free speech zealots causing trouble on this one. The recent videos of ISIS partisans sledge hammering the museum exhibits in Mosul provides instruction on the law forbidding “graven images.” Interestingly, ISIS cited exactly the same proscription in their vigorous efforts to demolish irreplaceable Assyrian and Babylonian artifacts. I predict some informative courtroom debate on whether film, video, People Magazine, or the face of the $20 bill is more “graven.”
Ridiculous? This cannot be what Judge Moore and his supporters really want, though it clearly is what they say they want. A moment’s thought should help us see that instilling the Decalogue as the basis of law would be divisive as well as redundant, unenforceable, or unconstitutional. But if the supporters of this movement don’t want that, they clearly want something like that. So let us interpret their desires figuratively yet respectfully.
It seems what these religious appeals truly aspire to is a more moral America, and religionists like Judge Moore are not ashamed to use positive law to achieve it. In this pursuit, they are already more honest– and more correct– than their postmodernist opponents. Religionists see the civil law as being a moral imperative. Their argument is that every law is also a moral injunction. “Thou shalt not run a red light!” Law prescribes an outcome that we consider to be a public good. At least some of religionists’ opponents argue the ridiculous assertion, “You can’t legislate morality.” Ironically, persons who say this are thinking of morality exactly as Judge Moore would have them think: as something given from on high, something absolute, endorsed by the divine. As the examples taken from the Ten Commandments show, you certainly can’t legislate some kinds of morality: those that concern the intentions of our hearts or those that can’t be demonstrated to show clear public benefits. But as the overlay of religious proscriptions against murder, libel, and theft with their secular counterparts demonstrates, you certainly can legislate some morality (See “What Do We Mean by “‘Morality’?“). In fact, legislating morality is all laws do. Even traffic rules that are purely conventional, like whether to drive on the left or the right-hand side of the road, assume a moral dimension when generalized in the public interest. Obviously, it could hardly matter less in itself which side we choose, so long as we all do the same thing. So some conventional laws in themselves have no inherent moral content. They differ from laws based on simple moral reasoning like those against murder or theft, which bind us, as it were, based on individual moral responsibility. Wanton killing would be wrong even if it were not against the law. Our reasoning about equity tells us that. Still, it is against the law because tolerating it would permit public harm, and in prohibiting public harm all laws, even conventional ones, have a moral component (see “Foundations of the Law: An Appetizer”).
Postmodernists think all laws to be in essence like driving on one side of the road or the other. The notion that all laws are purely conventional and arbitrary, determined purely by societal agreement, is one that religionists understandably abhor, and so they seek the sanction of divine authority as a sign of moral heft, sincerely thinking morality itself would dry up and blow away if not reinforced by religion. Their fear is understandable. For most of human history, religious authority was indeed the only moral warrant available. Many persons, perhaps most persons, still see it that way (see “The Axioms of Moral Systems”). No doubt, fans of Judge Moore see it that way. I certainly cannot doubt their sincerity. But I think their view is demonstrably in error as a matter of historical truth, moral judgment, and practicality (see “The Fragility of Religious Authority“).
Defenders of a religiously based morality remind us that our Founding Fathers considered this a Christian nation founded on Christian principles. This is a half-truth or perhaps a meaningless one. Of course, the white, British, male creators of this nation were inescapably steeped in the culture that produced their consciousness, and that culture was Judeo-Christian by the traditions of two thousand years. By that standard even the most avowedly anti-Christian among them, Thomas Jefferson, acted “on Christian principles.” One might with equal truth assert them all Greco-Roman on that basis, for these neoclassical, Enlightenment figures were as familiar with Epicurus as with Ecclesiastes. Though nurtured in the Christian tradition, they were anything but traditional in their view of it, at least as regards the authority of law (see “Modernism’s Midwives“). Two proofs that the Fathers were not quite so Christian as Judge Moore would prefer caution us against assuming a traditionalist Christian orientation as a basis of our nation’s legal status.
First, their public pronouncements were far less explicitly Christian than religionists might like, though anyone can certainly cherry pick Christian comments in their letters and private communications. If they regarded divine command, and specifically Christian morality, to be necessary for the guidance of the nation, why did they not more explicitly set it in the town square? Why resort to what the Supreme Court prefers to call “formal religiosity” in their official commentary? Washington’s first inaugural is a brief gem of public speaking that explicitly appeals to God’s beneficence and guidance but fails to mention Jesus. It is likely that early patriots like John Adams saw no conflict between their faith and their reason and thought each sufficient to bolster the other in pursuit of public morals (see “Belief in the Public Square”).
But if that were so, you might ask, why not explicitly summon both to the aid of the new nation in its battle against lawlessness and disunion at a time when its moral authority was in doubt among enemies at home and abroad? Any reading of their struggles in those dark years, first against the British and then against the collapse of their great experiment into factionalism and disunion, would argue for an explicit appeal not to some Deistic divine providence but to divine command, to Christian warrant for secular law. Yet instead we see the Establishment Clause. It is an antithesis, an explicit rejection of all governments’ previous basis for legitimacy and a ringing rejection of Judge Moore’s appeals to divine command. Our Founding Fathers knew their Judeo-Christian heritage far better than we, and because they knew their history, they also knew that the one mighty pillar of law that this heritage utilized was God’s mighty voice proclaiming absolute law. Why in heaven’s name did they resort to the kind of Rotary Club generic religious appeal that Washington used in his First Inaugural? And why in God’s name did they forbid using religion to fortify their novel and frequently besieged rule of law?
They knew something we may have forgotten. They knew it because it was fresh to their memories, and they wrote the Establishment Clause with this knowledge uppermost in their mind. It was knowledge both historical and moral.
The remembered the Reformation. Jefferson knew the punishment for atheism in Virginia was death. This was the consensual expectation of his time, for how could a common government rooted in denominational truth and goodness claims live in a society of religious diversity? Other founders’ parents endured the sectarian power struggles of Catholic Maryland and Anglican Virginia, of Puritan Massachusetts and Baptist Rhode Island, of Quaker Pennsylvania and Anglican England. Their forebears suffered the persecutions of James I that forced the Pilgrims to the Mayflower or the scorched earth of Cromwell’s invasion of Ireland, of Bloody Mary’s purges and Henry VIII’s loyalty oaths. And on the continent, the Huguenots and Dutch Reformed, St. Bartholomew’s Day, and Wallenstein’s cannons, all the way back to Luther and the Peasant’s Revolt. Even further– these founders were educated men, remember– they recalled the Hussites and Torquemada and the Lollards. They had studied the decimation of the Knights Templar, the suppression of the Cathars, the Fourth Crusade (see “Premodern Authority”). The whole sordid history of sectarian conflict was the bloodied soil into which they drove the stake of the Establishment Clause. Why else did they establish history’s first experimental and consciously created state built on a novelty: moral appeal of the law based upon the rational consent of the governed rather than the command of God? Power flowing up from citizens rather than down from on high. No political entity before theirs had ever done that before. Why take the chance?
I have seen no condensation of their moral reasoning, so I will attempt it here. They recognized the Achilles’ heal of divine command, of all religious authority. They could hardly fail to recognize what the bloodied history of the Reformation had finally made manifest. Religious authority could offer no constructive response to challenge. Why? Any investigation of the Reformation instead reveals a radical splintering of responses, of which the multiplicity (one educated estimate of the number of Christian denominations today is 10,000, but I have no idea of how that is compiled or whether it is accurate) of sects emerging from the Reformation are examples. Why is that? The answer revolves around the nature of warrant. Religious authority, the kind that justified both the divine command of dogma and the divine right of monarchs like Henry IV of France, and, obviously, the Ten Commandments, depends for its justification solely on the trust of those who accept it. That trust is a very weak kind of objective knowledge, easily disrupted by contrarian claims of competing authority. However, it is intimately linked to belief, a private conviction, leading to exaggerated claims to certainty that clash spectacularly when trust is weakened or belief is challenged, particularly by those who embrace other trust and belief in equally absolute but different sources of truth and goodness. So, though commitment to the truth and goodness claims of the authority might seem solid when trust is given, it can be easily revoked when trust is cast into doubt, and the belief in the linked truth and goodness claims of authority is even more susceptible to doubt of the same nature (see “Knowledge, Trust, and Belief“). Note that other kinds of warrant: empirical, expertise, and experience, do not suffer from the same kind of wobbly support but contain within their mode of warrant the means of settling disputes involving truth and goodness claims. For instance, two experts might discuss their findings and agree that one or the other possesses greater knowledge of the specifics of their disagreement and thus settle their dispute. Even undifferentiated experience allows us to revisit issues in doubt to throw further experience at the problem in an effort to resolve it peacefully. But two authorities in conflict cannot resolve disagreement, for both can offer no further proof of their case, and the presence of dispute itself, of course, tempts trust to weaken. Collapse follows quickly and catastrophically, often conducing to a transfer of trust to another authority. This is the story of the Reformation. It is also the story of the current conflict between Shi’ite and Sunni, between radical Islam and the secular West, as it must be in every conflict that disputes specific contents of divine command, as it would be in any effort to enshrine the Decalogue as the basis for civil society. Such crises of authority are epistemologically insoluble.
This lesson was difficult to learn. Ten generations of horrendous bloodshed in Europe were the price of learning that authority itself was the problem. Just as any posting of the Ten Commandments as a basis for positive law would instantly face insuperable issues of sectarian controversy, any appeal to Divine Command must fail in the face of anything but a religiously monolithic society.
Our Founding Fathers knew or intuited this. They established their experiment on a firmer ground than authority. In the spirit of the Enlightenment of which they were the representatives, they built a state upon the enlightened self-interest of their constituents. Their state with all its safeguards against unlimited power and lack of representation was a Rubik’s Cube of rationality: a nation constructed of reason appealing unabashedly to reasonable citizens for its moral power rather than to the Almighty. It was unprecedented.
The era of the founding saw other formal attempts to build moral systems on reason and reasoned experience in explicit rejection of divine command and divine right. Three moral systems reliant on reason continue to vie for assent: virtue ethics, utilitarianism, and duty ethics (see “Three Moral Systems”). Other and more flawed appeals to reason derived from or trended toward postmodernism: social contract theory and pragmatism come to mind. These later experiments extended the founders’ brave experiment and insured that there could be no return to an appeal to religious authority with all its certainty and unanimity, no matter how nostalgic that might prove.
Judge Moore’s quest to honor his religious beliefs is admirable, but his fears of a moral collapse are misdirected. The modernism that produced our form of government is not his enemy, though believers understandably believe it to be (see “Tao and the Myth of Religious Return”). They should refocus their opposition on the postmodern movement contemptuous of objective morality that seeks to equate all knowledge with opinion, all truth with culture, and all morality with nihilism (see “Toward a Public Morality“).