Do constitutions violate church, state separation?

The issue involving Alabama Chief Justice Roy Moore’s posting of the Ten Commandments in an Alabama court building is not as simple as believed and is by no means over, despite the suspension of Justice Moore by a state court.

Let us put the crux of the issue in a hypothetical example that could well happen: Suppose Justice Moore, rather than posting the Ten Commandments in a public place, had posted the Preamble to the Alabama State Constitution, which reads, “We, the people of the State of Alabama, in order to establish justice, insure domestic tranquility, and secure the blessings of liberty to ourselves and our posterity, invoking the favor and guidance of Almighty God, do ordain and establish the following Constitution and form of government for the State of Alabama.”

Would the U.S. Supreme Court, U.S. District Judge Myron Thompson, and the Alabama Supreme Court rule that posting in public the Preamble and Constitution of the State of Alabama is unconstitutional because it invokes God?

By what logic is public exposure of one document mentioning God permitted, but of another document mentioning God not? Restrictions of free speech or expression here become arbitrary, inconsistent, confusing, semantic and disingenuous.

Forty-six of the 50 states have preambles invoking the name of God. Are 46 state constitutions therefore unconstitutional if exposed publicly or posted on public property, breaching the “wall of separation between church and state”?

Is displaying in the public square the Declaration of Independence (“we are endowed by our Creator with certain unalienable right”) unconstitutional? The Pledge of Allegiance to the Flag (“one nation, under God”)? Your money (“In God We Trust”)? (If you think so, send it to me.)

Justice Moore said he was acting under authority of his oath of office and the Constitution of Alabama, complying with its Preamble that was “invoking the favor and guidance of Almighty God.” States’ rights constitutionally protected by the Tenth Amendment also come into play here.

The case and its precedent are quite germane to Maine because the Preamble to Maine’s Constitution cites “acknowledging with grateful hearts the goodness of the Sovereign Ruler of the Universe in affording us an opportunity, so favorable to the design; and, imploring God’s aid and direction in its accomplishment. …”

Justice Moore says he will appeal. He may not win, but then again, he might. Three U.S. Supreme Court justices have given us historical insight here:

. William Rehnquist: “The wall of separation between church and state is a metaphor based upon bad history, a metaphor which has proved useless as a guide to judging. It should be frankly and explicitly abandoned. … The greatest injury of the ‘wall’ notion is its mischievous diversion of judges from the actual intention of the drafters of the Bill of Rights.” (This wall metaphor, by the way, came from Thomas Jefferson in a letter of l802, 11 years after states’ ratification of the Bill of Rights.)

. Potter Stewart: “We err in the first place if we do not recognize, as a matter of history and a matter of the imperatives of our free society, that religion and government must necessarily interact in countless ways.” The Bangor Daily News, for example, often mentions God and religion and is mailed to many subscribers via the U.S. Post Office. Such literally violates the separation of church and state. And isn’t, as another of countless examples, the teaching of Milton’s “Paradise Lost” in a public school a breach in the wall?

. William O. Douglas once wrote that proscribing public worship discriminates in favor of “those who believe in no religion over those who do believe.”

The final jury is still out. It now depends on whether the U.S. Supreme Court will have the courage to hear the case.

Ronald L. Trowbridge, Ph.D. is president of the Maine Heritage Policy Center, and former chief of staff to Chief Justice Warren Burger and the bipartisan Commission on the Bicentennial of the U.S. Constitution. He lives in Durham.