10 Commandments Discussion in AL

Tonight's panel at Cumberland Law School (Birmingham, AL) on 10 Commandments displays was interesting and entertaining as expected.  Jay Sekulow (American Center for Law and Justice) and Professor Marci Hamilton went at it a few times.  There was also a good contribution from Dr. Ron Sider, who I admire as a pioneer of "pro-life progressivism" among evangelicals and a leading proponent of the role of faith-based organizations in combatting poverty.  Discussion of the issue has special relevance in Alabama because Roy Moore, the judge who rose to fame by putting up 10 Commandments in his courtroom and (as chief justice) the AL Sup Ct courthouse, is now running for governor (the word seems to be, though, that he's not likely to win the GOP primary).

A couple of notes about the panel.  FIrst, no one on it was all that hepped on getting 10 Commandments displays or other government symbols erected.  Even though Jay defended their constitutionality, he agreed with my argument that cases about (i) free-exercise rights and (ii) equal participation of religion in school vouchers and other benefits programs are far more important to true religious freedom and vitality in modern America.

Second, Marci spoke quite eloquently against imposing on the conscience of atheists through 10 Commandments displays and other government symbols, and argued that the courts need to prevent such impositions through judicial review under the Establishment Clause (because, she implied, you can't trust legislatures).  But she contined to set forth her position that religious conscience should not be constitutionally protected from secular laws under the Free Exercise Clause -- in that case, she says, any protection should come from legislatures, not from courts engaging in judicial review.  Although there are ways of distinguishing the two situations, it still seems to me that her position gives far more weight to the conscience of the atheist than to that of the religious believer.  I'd argue, by contrast, for giving substantial weight to both.  It reminded me of the point that BYU law prof Fred Gedicks once noted:  according to the governing law, an atheist student who has to listen to a 30-second prayer at graduation ceremonies suffers an unconstitutional burden under the Establishment Clause (Lee v. Weisman), but (under the Mozert 6th Cir. decision of 1987) a fundamentalist student who has to listen day after day in public school to secular lessons that conflict with his or her faith suffers no constitutional burden under the Free Exercise Clause.  Something screwy there.

Tom