Saturday, October 19, 2002

Time for more "Ten Commandments in the courthouse" discussion, inspired (after my post on the topic yesterday) by an article this morning from law.com about a somewhat similar dispute in Pennsylvania.

We're all in agreeance (I know, it 's not a word, but it's a recurring phrase at local union meetings throughout the south, and I love it) -- we're all in agreeance that we're not the Taliban and don't want to be like them. Most people in this country didn't even know what the nature of the government in Afghanistan was, before September of last year. But one who did was Justice Johnstone of the Alabama Supreme Court. Last August, soon after Chief Justice Moore installed his monument, Justice Johnstone took what I think was an extraordinarily brave stand (brave, considering that judges and justices in Alabama are elected) against it, pointing out (among other things) that government in the name of God is not the way we do things in this country. He contrasted us, in that respect, with (among other examples) the Taliban in Afghanistan. See, e.g., this news account. You can expect some nasty attack ads against Justice Johnstone, when it comes time for him to run for reelection, based on this. But the point is a simple and, I think, very good one: one of the things that makes our nation what it is, is that our government does not purport to govern in the name of God.

In the legal move technically known as "I know you are but what am I," however, a determined supporter of courthouse-installation-of-Ten-Commandments has filed a brief in the U.S. Court of Appeals claiming that it is taking down a Commandments plaque that would make us like the Taliban (more precisely, like its destruction of old Buddhist monuments). That's what the law.com story is about. The lawyer's legal argument is not entirely laughable -- wrong, but not entirely laughable -- in that he says that there's a big difference from a legal point of view between (a) officials' action in putting up such a plaque here and now; and (b) officials' decision to refrain from taking down such a plaque that was put there c. 70 years ago. He says that (b) is not unlawful even if (a) is. As I said, not entirely laughable, but legally wrong, I think. (It's sort of like saying "Well, I didn't institute the rule that our family business wouldn't hire Black people. My grandfather did when he ran this business. I just haven't changed it because I've been too busy to do the paperwork that the change would entail, and I want to honor the memory of my grandfather by leaving things the way he had them").

On the other hand, I do recognize the value of facing the fact that our cultural values have changed over time and that we can't always go painting over old stuff. It's a recurring issue for those of us who love traditional banjo-fiddle music and recorded string band music of the 1920s and 1930s. ("I thought we were talking about the Taliban?"). The Weems String Band's "Davy Davy," for instance, is one of the greatest musical recordings ever -- an eerie string-band sound -- but has one verse with a racial epithet (you can guess which one), not used in anger but still offensive to current ears. I'd like to digitize that verse out somehow in the copy I listen to, but then again I wouldn't because history is real.

So -- into which category does "an old Ten Commandments plaque in the courthouse" fall? Is it "perpetuation of unlawfulness" (like my employment-discrimination hypothetical)? Or is it "refusal to paint over cultural history"? I think it's the former, because I think that keeping such a plaque up really does have actual current bad effects on our society, in fostering the incorrect understanding that there is an official (even if non-denominational, perhaps) religious belief in this country. And, in contrast to the Weems String Band, the only thing being preserved by preservation of the plaque is the past endorsement of religion; there's no other content in which that now-inappropriate endorsement is embedded. And unlike the Buddhas in Afghanistan, we're not really talking about a major piece of cultural history here; we're talking about a brass plaque, not a unique and irreplaceable historical work. That's what's really offensive to me about the guy's argument: the equation of just another 70-year old brass plaque in a county courthouse with a massive, historically significant, 1500-year-old statue from another culture.

So, in the end, the main lesson of the story about the guy's brief in the Pennsylvania case is that exaggerated rhetoric in a legal brief might be fun to write; but you should usually let one of your colleagues edit it out or tone it down, because nothing falls flatter than an incorrect and nasty "I know you are but what am I" argument.

UPDATE: Via Howard Bashman, this Mtgmry Advertiser story about Friday's trial testimony.

posted by sam 7:48 AM 0 comments

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