Blast from my academic past - The Alabama Ten Commandments foolishness is really bringing back memories from my college days. As a pre-lawyer, I took a whole bunch of constitutional law and political theory classes, and naturally chose to write my first junior paper on a constitutional topic. The way the Politics department was organized, you wrote your Fall semester JP in a small workshop with 5 or 6 other students led by a professor. My seminar was run by Prof. Russell Hittinger. (At the time, I had no idea what a conservative theologue the guy was, although when he told me he intended to move to Catholic University, I should have surmised.)

Anyways, the students in my seminar got to choose from a limited selection of topics all relating to freedom of religion. My pick had to do with the so-called Mobile, Alabama school prayer cases, which had originally been filed in 1982 by an atheist to prevent prayer and the teaching of Creationism in the Alabama public schools. Those cases resulted in a Supreme Court victory for the plaintiff, Ishmael Jaffree, in June 1985. However, Douglas Smith, a born-again school teacher, later intervened in the case alleging that his religious freedoms would be abridged if the court granted the plaintiff's request. He also asked that, in the event Jaffree gained the relief he sought, that the injunction be expanded to cover the religions of "secularism, humanism, evolution, materialism, agnosticism, atheism, and others."

In 1987, Smith got a sympathetic federal judge, William Brevard Hand, to rule in his favor. Hand found that secular humanism is in fact a form of religion under applicable legal tests, and that it had become "established" in the public school system in violation of the U.S. Constitution. As you can imagine, this was a rather radical decision. What was most interesting to Hittinger, however, was that when the appeals court overruled Hand in 1987, it called his determination of the definition of religion "a delicate question" that did not need to be answered in its ruling. Rather, the appellate judges simply held that "even assuming that secular humanism is a religion for purposes of the first amendment, appellees have failed to prove a violation of the establishment clause." To some degree, then, Hand's finding about secular humanism being a religion is still on the books, at least in the Southern District of Alabama.

Fast forward to the present. We may now be reaping the results of the Smith court's handiwork. (Get it?) Now that Moore has lost his battle and his brethren are ordering his beloved Ten Commandment's moved off government property, a bunch of fundamentalists have filed suit alleging that "removal of the Ten Commandments Monument creates an excessive entanglement of government with the religion of nontheistic beliefs." In this sense, the arguments deployed by the new plaintiffs in trying to undermine the well-founded victory against Moore are exactly like Smith's in the school prayer cases. The legal weakness they are exploiting is the same in both cases -- courts like to take an expansive view of what constitutes religion, especially when trying to protect the "free exercise thereof." But that same inclusive definition can be wielded like a club to force the goverment to "disentangle" itself from any and all alleged religions -- be they secular humanism or nontheistic beliefs. It would be nice if the 11th Circuit takes this second opportunity to squelch this disingenous line of reasoning and protect, once and for all, the doctrine of neutrality from sophistry from our friends down in 'Bama. Just like I said they needed to do in my 1989 Princeton JP.

P.S. I actually missed the news that the U.S. House of Representatives had formally sided with C.J. Moore back in July, when it voted to withhold any funds that would be used to enforce the 11th Circuit appeals court decision declaring the Ten Commandments in Alabama's judicial building unconstitutional. How do you feel about your government now?