Faith and Doubt

Last note on the Moore case for a while. One of the irksome, if unsurprising, things about this case is that (despite the best efforts of Jeffrey Toobin on CNN) the media has largely acted as though, just because this is a publicly controversial issue, it's also legally controversial… which it really ain't. Moore knows full well he's got a loser case. But one of the ways his supporters have tried to create doubt about the legal status of his action is by reference to a recent case decided by the 3rd Circuit Court of Appeals. One of Moore's fellow travellers recently alleged that this court reached "a completely different decison"—implying that there was a substantively similar case in which that court simply interpreted the law differently.

Well. Let's take a look at the 3rd Circuit decision [PDF]. What we see is, in fact, only the most superficial possible similarity. This suit also involved a challenge to a Ten Commandments plaque that had been built into a courthouse in 1920. The court stressed that the state had since done nothing to celebrate or draw particular attention to the plaque and, most importantly, that since the desire to retain the plaque was motivated by a secular goal of historic preservation, reasonable observers and residents would not conclude that the plaque's presence constituted an official endorsement of religion. In other words, the crucial reason for allowing that Ten Commandments to stay was that the case was not like the one in Alabama—not a case in which the Commandments would be perceived by reasonable observers as "acknowledging the sovereigny of God" in the public sphere. The folks who are disingenuously citing this case need to reread that bit about "bearing false witness."