For nearly a decade, the American Civil Liberties Union has been trying to silence an Ohio judge from expressing his legal philosophy.
The ACLU finds it wrong that Common Pleas Judge James DeWeese of Ohio display a small poster that compares moral absolutes with moral relativism.
Judge DeWeese’s poster has on the left hand side the Ten Commandments, labeled “moral absolutes.” On the right are seven of what the judge called “humanist precepts,” which he labeled “moral relatives.” The poster concludes, “I join the founders in personally acknowledging the importance of Almighty God’s fixed moral standards for restoring the moral fabric of this nation.”
The poster, which he put up in 2006, is entitled “Philosophies of Law in Conflict.” It was designed to illustrate Judge DeWeese’s legal philosophy. The poster features two columns of principles or precepts intended to show the contrast between legal philosophies based on moral absolutes and moral relativism.
The American Center for Law and Justice, who just filed its reply brief, the final brief to be filed before oral arguments take place before the appeals court, has been representing Judge DeWeese since his battle with the ACLU began.
“That philosophy, which holds that a society’s legal system must rest on moral absolutes as opposed to moral relativism, and that abandonment of moral absolutes leads to societal breakdown and chaos, is the same philosophy that was held by the founders of this nation,” says Francis J. Manion, Senior Counsel of the ACLJ.
“To say, as the ACLU does in this case, that a judge may not espouse such a view because it is ‘religious’, is to adopt an erroneous and time worn interpretation of the First Amendment that is not based on the words, the history or the Founders’ understanding of the Constitution,” asserts Manion.
In July 2000, Judge DeWeese hung a small framed copy of the Ten Commandments near a copy of the Bill of Rights. In his courtroom also hung a portrait of Abraham Lincoln and Ohio’s seal with the state motto: “With God All Things Are Possible.”
The ACLU caught wind of the display and enlisted the help of attorney Bernard Davis, who “from time to time” practiced law in the same courtroom where he came into “direct unwelcomed contact with the Ten Commandments display.” The ACLU filed suit on behalf of its members in March 2001, asserting that the display violated the Constitution.
In 2002, District Judge Kathleen McDonald O’Malley granted summary judgment to the ACLU, and in 2004, by a 2-1 vote, the three-judge panel with the 6th U.S. Circuit Court of Appeals agreed to uphold a lower court’s decision to remove the poster.
In a scathing decent, Judge Batchelder with the court of appeals wrote, “Judge DeWeese displayed a small, unobtrusive copy of the Ten Commandments in his courtroom, as part of a series of documents and depictions that he uses for the express purpose of educating community groups in the history and philosophy of the law. It is not unconstitutional to make observations of historical fact.”
Judge Batchelder’s opinion went on to say that the “text is so small that it cannot be read from the jury box, the witness stand or the bench.” Further Judge Batchelder called into question the ACLU’s paper plaintiff, Davis, and his “injury.” She concluded Davis had no standing.
Judge DeWeese told the Mansfield News Journal in 2008 that he is not in contempt because this is a different poster than the one. “It’s really about a debate of philosophies and how that affects our criminal caseloads. I put both sides up. People can make their own decisions.”
The ACLU filed a motion in the U.S. District Court of Northern Ohio with Judge Kathleen O’Malley in May 2008 requesting Judge DeWeese be found in contempt of court with his new poster.
Honohan argued, “Posting secular texts is a transparent attempt to distract from Judge DeWeese’s original intention to promote religious ideology. As a steward of the Courts, he should immediately comply with Judge O’Malley’s order and remove the poster from his courtroom.”
In December 2009, Judge Patricia A. Gaughan of the Federal Court for the Northern District of Ohio sided with the ACLU and ordered Judge DeWeese to remove the display.
The ACLJ responded to the order by filing their initial brief in December, with the 6th Circuit U.S. Court of Appeal, arguing several key issues.
First the brief argues the ACLU lacks legal standing in the case, as agreed by Judge Batchelder. Second, the lower court erred in determining that the display violates the Establishment Clause of the U.S. Constitution and violates articles of the Ohio Constitution, and third they argue that the Judge’s display is protected by the Free Speech Clause of the First Amendment.
“Neither DeWeese’s discussion of the contrast between legal philosophies based on moral absolutes as opposed to moral relativism, nor his use of the Decalogue as a means to illustrate that contrast bespeak a constitutionally problematic religious purpose,” the brief argues. “Moreover, a reasonable observer of the poster would view the poster as a statement about legal philosophy, morality, and ethics, not theology or religion.”
Courtesy of Christian Law Journal