October 8, 2008

Why The Decalogue Is Bad Judicial Ethics

I don't know about you, but if I went to court and I saw this poster up on the wall, I would be very, very intimidated -- even if I were a Christian. The message it sends to me is that the judge considers himself the moral guardian of society and that he has no problem at all stepping into the shoes of God to condemn whatever he thinks is offensive. There is only one way of looking at things, and that's the judge's, and he's going to justify his way of looking at things by reference to the 10 C's.

As a nonbeliever, of course, I would be especially intimidated. Aside from the deliberate perversion of moral principles underlying humanism that the judge seems to think serves as the moral guide to nonbelievers' behavior, there is also his reference to a "conflict of legal and moral philosophies raging in the United States," and the judge's apparent eagerness to take sides in that conflict. Now, the judge may not consider himself a modern humanist, so maybe he doesn't really understand what the ethics of humanism are. That's fine, he's well within his rights to be a religious man and base his ethics on the teachings of his religion if he wishes. But like anyone else, he should withhold moral judgment on matters of which he is ignorant -- especially because he is a judge and in a position of some power to act on those moral judgments.

After all, a judge holds a tremendous amount of power, at least in his own court. The bulk of the cases appearing before that judge will never be appealed, and courts are (by design) not democratic institutions. That does not mean that they are above the law themselves, though, which is why hanging that poster has earned this judge a lawsuit challenging the poster on Establishment Clause grounds. H/T to Prof. Howard Friedman. To me, the glorification of the 10 C's and the diminishment of non-theistic morality in the poster is more than enough proof that the court is encouraging people to believe in the 10 C's -- but the threat of non-favorable judicial action by those who do not avow to side with God on questions of morality is, I should hope, clearly over the top from anyone's perspective.

But I don't think it's appropriate from a judicial ethics standpoint to have such a poster, either. Let's leave aside the question of whether the poster violates the Constitution. Good judicial ethics requires the judge to create an atmosphere where all who come before him are treated as equals. Everyone should get a fair chance to say what they have to say and have it evaluated neutrally and on its merits, and judged by the yardstick of the law. A poster that glorifies the 10 C's indicates that people who do not subscribe to them are going to be looked upon with askance by the Court.

Now, in some cases, it's pretty easy to say that a violator of one or more of the 10 C's is indeed both morally and legally deficient -- murderers, liars, and thieves, for instance. In other cases, certain kinds of conduct prohibited by the 10 C's would seem to be pretty clearly morally blameworthy -- adultery, for instance, or in some cases, demonstrating disrespect for one's parents. And I'm not suggesting that a court need ignore morality -- far from it, I think a court needs to be constantly consider moral issues. But in some cases, the 10 C"s require a level of moral conduct that is simply inhuman.

Take, for instance, their injunction against coveting a neighbor's goods. If my neighbor gets a big plasma-screen TV, and I don't have one, it's only natural for me to think, "I'd like to have one of those myself." The sin (according to the tenth commandment) is wanting the TV at all. I don't have to steal the TV in order to have sinned -- the sin, the moral fault, lies entirely within my mind. To use the terminology of the law, there is no actus reus to this crime -- my moral fault lies entirely within my mind.

Same thing if my neighbor's wife is attractive. I can look at her and think, "She's very good-looking." I'm not cheating on my wife if I do that. If I go ahead and actually seduce and have sex with her, then yes, that's a morally blameworthy thing to do. But the 10 C's (and an explicit teaching of Jesus about this very subject) says that the feeling of attraction is, itself, a sin and something worhy of moral condemnation.

I have another problem with the 10 C's. In the version posted in this judge's courtroom, four of them deal with a person's relationship to God. I have seen versions of the 10 C's in which there are only three commandments dealing with worship, and the injunction against coveting is broken down into two commandments, one against desiring another's material goods and the other against sexual attraction to someone not one's own spouse. But the point is, the first commandments, the ones that are important enough to come first, even before the injunction against murder, deal with God. the 10 C's tell me that I must worship one and only one God (specifically Jehovah), that I must do so weekly and devote an entire day every week to worship, and that I must not invoke God's name in vain. Some strict interpretations would say that this post, by simply mentioning the name Jehovah, violates that Commandment. And the 10 C's place violation of these rules on a moral level equivalent to that of murder.

Well, frankly, I don't think it's of any particular moral moment if I go to church or not. And it is obviously not for a judge to tell me that I have to do that. In a court of law, if I see the 10 C's posted on a wall, I know that my failure to go to church on Sunday will be looked upon by the judge as rendering me morally deficient. The fact that I don't go to church means I'm just as bad as if I were a liar. And being a liar is a very bad thing to be in court.

So in that court, either as a lawyer or as a litigant, that tells me that I am not on an equal footing with a Christian or a Jew. As a non-theist, I am worse off, I am starting from a position of a moral deficit and my veracity will be subject to greater scrutiny than that of a religious person. Consequently, posting the 10 C's is an explicit statement by the court that not everyone who comes in to that court will be treated equally.

Finally, the 10 C's are not the law of the United States of America or of the state in which the court is located (in the case of this lawsuit, that would be Ohio, but it could be any of the 50 states or six non-state territories* in which U.S. courts can be found). Seeing these posted, and especially seeing them given moral glorification as this poster does, tells me that my conduct (or my client's conduct) will be judged accoridng to something other than the law.

I fully understand that there are people who think that the 10 C's are the foundation for all law in the western world, and/or the foundation for our system of ethics and morality. But they are also explicitly religious. Our system of ethics and morality needs to stand on its own, because it is supposed to be universal. Our system of laws is supposed to have universal application.

Which is another way of saying that the courts should be for everyone. Posting the 10 C's says that the court is there more for the benefit of Christians and Jews, and less so for people who have other kinds of beliefs. So for all those reasons, I think it's bad judicial ethics for a court to post the 10 C's.

* Guam, U.S. Virgin Islands, Northern Mariana Islands, American Samoa, Puerto Rico, or the District of Columbia, to be precise.

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