No Judicial Utility in Ten Commandments

Hon. M. Ashley McKathan
Covington County Courthouse
1-K North Court Square
Andalusia AL 36420-3995

Dear Judge McKathan:

Press reports on the decalogial embroidery of your judicial costume claim you did it because the Ten Commandments can help a judge know the difference between right and wrong.” (Associated Press, Dec. 15, 2004) As a recently retired, long-serving elected Republican trial judge like yourself, I never found this to be so, with or without aid of a frontal mnemonic; but I remain eager to learn any useful tricks.

Signing on as a judge, I had to agree that “right and wrong” would be whatever the law said they were. This meant the First Commandment was wrong by definition, since it would violate the Establishment Clause of the First Amendment. Possibly this is just what you meant; that the First Commandment exemplifies “wrong” as against the First Amendment’s “right”?

I’m afraid American law also protects the worship of idols, taking God’s name in vain, labor on the Sabbath, dishonoring one’s parents, and coveting a neighbor’s fortune (Commandments II, III, IV, V and X). That makes these Commandments, too, jurisprudentially “wrong.” For example, the Alabama Juvenile Code says that neglectful and abusive parents are unworthy of veneration. Interestingly, in juvenile court I’ve heard the Fifth Commandment invoked to justify parental cruelty. Here God’s word not only didn’t help me choose “right” over “wrong,” but counseled the reverse.

The Sixth, forbidding murder; the Eighth, proscribing theft; and the Ninth, prohibiting injurious lies, simply mirror the laws of all civilized nations. Unfortunately, they don’t explain the many degrees of homicide or of theft; they don’t mention the various legal defenses and justifications; they don’t say when false witness gives rise to criminal or civil liability. So even where God and the law are on the same team, God is content to wave the school colors, but judges must read the playbook.

This leaves us with The One Commandment, the juicy one, the only one that public policy decalogians really care about, or that a judge might ever use: adultery. No. 7 condemns what the law merely discourages, and so may strengthen the judge’s weighing of infidelity in cases where judicial discretion is available: custody of children, division of marital property, credibility of witnesses. I know judges who, on this authority, strain to deny adulterers their shares of marital property or child custody rights, and who accord no credibility to an adulterer’s testimony. Yet it does seem that this Commandment, like the rest, envisions God’s favor rather than man’s. Surely, if God is in his Heaven, doing as he says He will, then he can punish sinners well enough without the paltry help of jurists?

Anyhow, Big No. 7 has pretty serious limits. Because a specific Commandment proscribes adultery, while none forbids cruelty, drunkenness, indolence, etc., a judge might say an adulterous spouse is by definition “worse” than one whose faults lie beyond the decalogue. Yet here again God and the law diverge. In Alabama as elsewhere, sexual infidelity is but one of many forms of marital misconduct, and by no means always the weightiest–a proposition to which even whilom Chief Justice Roy Moore assented where the issue was marital property. Ex parte Moore, 873 So.2d 1161 (Ala. 2003). Nor is spousal infidelity the chief determinant of a child’s best interest (although from this rule your former Chief “vigorously dissents”), Ex parte Pankey, 848 So.2d 963 (Ala. 2002) (Moore, C.J., dissenting) (favoring a “conclusive presumption” of custodial unfitness for adulterous parents).

For these reasons you’ll understand why I’m having trouble finding judicial utility in the Ten Commandments. Because you seem sufficiently persuaded of the contrary view to have it emblazoned on your robe, you’re surely just the person to correct my wayward understanding. Pending that, I remain

Collegially yours,

David H. Dunlap

David H. Dunlap is a member of the Freedom From Religion Foundation.

Freedom From Religion Foundation