Moore, Religion, and Judging

Horwitz, Paul PHorwitz at OMM.COM
Wed Aug 8 08:47:16 PDT 2001

Rick Duncan and Scott Idleman raise interesting psychological exegeses; I
hope, and now have reason to feel sure, that their Establishment Clause
analyses will pay proper heed to the psychological pressures inherent in
voluntary school prayer, invocations at graduation exercises, and the like.
If religiously devout federal judges -- who are also tenured for life and
accorded every manner of public and private respect -- can feel "beset" by
"psychological tension," and the chief justice of a state court can feel
that his beliefs have been downtrodden and oppressed by a powerful majority,
then what pressures must beset a person of no faith, or non-majoritarian
faith, who is encouraged by overt and covert measures to pray with her
fellows, who must sit while others stand, who is investigated by the
authorities if she complains (as the litigant appears to have been in the
Santa Fe case) -- and who, unlike Judge Moore, is all of twelve years old?
Is one who believes that Judge Moore acted out of the grip of pitiable
psychological compulsion equally obliged to agree with Judge Kennedy's
remarks in Lee v. Weisman that what "to most believers may seem nothing more
than a reasonable request that the nonbeliever respect their religious
practices, in a school context may appear to the nonbeliever or dissenter to
be an attempt to employ the machinery of the State to enforce a religious
orthodoxy," or that public and peer pressure, "though subtle and indirect,
can be as real as any overt compulsion"?

Of course, there are still bases for the legal argument that such arguments
should not count in law, however true in fact they might be -- and thus,
that Lee is wrong in law but Moore's actions, whether legal or not, are
understandable (and thus sympathetic, to some degree) in fact.  If that's
so, it still seems to me that one's posture toward litigants like Doe in
Santa Fe or Deborah Weisman ought to be equally understanding and
sympathetic, rather than describing such litigations as "oppressive powerful
groups."  I would at least hope one might appreciate the tension between
letting the milk of human sympathy overflow for Judge Moore while depicting
his opponents, and those who have secured the legal results that are
described as suppressive powerful groups.  If Judge Moore is "liberty
speaking truth to power," isn't Deborah Weisman too?  [This is obviously
directed more at Rick Duncan's more forceful remarks than at Scott Idleman's
more nuanced and even-handed suggestion that the legal system simply ought
to acknowledge the role of religious beliefs for those in positions of

Beyond any of this, I think with respect that the psychological analysis
advanced above doesn't fairly describe Judge Moore's position.  After all,
he maintained his Ten Commandments in his courtroom for some time before
they attracted attention; his opponents were ultimately not able to dislodge
them; he garnered enough popular support nationwide that, while he may feel
embattled, he is equally likely to feel vindicated; and if that weren't
enough, he's currently the head of the state judiciary, and has now mounted
religious inconography in the halls of the state Supreme Court.  Given those
facts, I'd say he less likely feels oppressed and coerced, and a little more
likely feels like a boxer who keeps getting cheered every time he throws a
punch to the kidneys, and decides he'd rather listen to the crowd than the

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