Freethought Today December 1995


Public Prayer And The Public

This speech was presented before 175 registrants at the annual Freedom From Religion Foundation convention in Denver, Colorado, September 30, 1995.

By Joel Sogol

I'd like to extend an invitation for you to come to Alabama if you get really depressed. We could call it "The land that time forgot." Come to Alabama, where Gideons are still passing out bibles in schools, where it seems every principal, vice principal and school counselor is a preacher on the side and is praying before student assemblies, football games, basketball games and any place else they can get student gatherings, where during the summer some school systems will give students public school credit to attend bible class and church.

Our governor, Fob James, Jr., was asked by a reporter from a Birmingham television station, after we filed the Ten Commandments lawsuit, whether or not he would extend the same zealous support if this judge were a Muslim and wanted to engage in Muslim prayer in court. Our governor replied, "If they want to be Muslims and pray, that's fine. Let them go to the Middle East." So if you get depressed, come visit!

Not too long ago I came across a book, a portion of which struck me as being very relevant to the Freedom From Religion Foundation's Ten Commandments lawsuit. This does not come from Alabama. It reads:

"When the courtroom was packed just short of bursting apart, it seemed, the judge ordered the doors closed over the sweltering audience, and with great solemnity and all the dignity possible, announced that Brother Twitchell would invoke the Divine blessing. This was new to me. I had practiced law for more than forty years, and had never before heard God called in to referee a court trial. I had likewise been to prize fights and horse races, and these were not opened with a prayer. After adjournment we went to the judge and told him that in a case of this nature, especially, we did not consider it fair or suitable to play up their side by opening court proceedings with a prayer; it was not a form of church service; it was a trial in court; and at best it was an unfair weapon to introduce, particularly as the case had a religious aspect.

"The lawyers for the prosecution seemed shocked that such an objection and request should be presented. Prayer surely could do no harm. But, of course, it is easy for a lawyer to seem shocked.

"Before the opening of the next session I arose and stated what had happened in the matter, pointed out the character of the case, and made my objection to the court opening the proceedings with prayer. The judge overruled the motion, of course. The people assembled looked as though a thunderbolt had stunned them, and the wrath of the Almighty might be hurled down upon the heads of the defense. None of them had ever heard of any one objecting to any occasion being opened or closed or interspersed with prayer. That there should be no dearth of preachers, the court had appointed a committee of church members to keep us supplied, so that there would be a new one at every session of the trial."

That comes from The Story of My Life, Clarence Darrow's autobiography, published in 1932. He was writing about the Scopes Monkey trial.

About two and a half years ago I had a very bad experience in court. We had a fellow in Tuscaloosa that I think was trying to prepare himself to be a Jimmy Swaggart. He had been called in by one of our judges to lead a prayer before jury week. That just was more than I could deal with, so I wrote a letter to our presiding judge and told him that if they didn't quit praying, I would sue. To my surprise, they quit. It generated some publicity, as these things always do. Through my position as chair of the litigation committee for ACLU, we began to get some reports and complaints from other people across the state about the same kinds of violation.

About two years ago I wrote a letter to the Chief Justice of the Alabama Supreme Court citing him some cases that were pretty much directly on point and saying he had to put a stop to this. There's a case out of North Carolina called Constangy that deals with courtroom prayer. There's a case out of Cobb County, Georgia, that deals with the Ten Commandments. The Chief Justice told the judges, at a judicial conference of all the judges in the state, that there may be a problem here and suggested that they be careful, but that they could do what they want. Most of the judges in the state stopped that practice, as best I can tell.

But in Gadsden, the Etowah County circuit, there is judge who continued to open jury weeks with prayer by the name of Judge Roy Moore. One of the attorneys who had complained to me very bitterly about what was going on called me one day and said "I'll hire a court reporter to go in and take down the prayer." I said fine, and he did. But foolish me--I thought that there was something called fair play that ought to exist between lawyers and judges, so I suggested he inform the judge that we were going to take that down. He called Judge Roy Moore and told him there would be a court reporter there. What I learned from that moment on was that I had screwed up. Roy Moore called a press conference and said he had been singled out by the ACLU for his religious beliefs and that he would not stop prayer. He then, very gratuitously, showed me a plaque of the Ten Commandments on his wall and said that those were the laws he lived by and believed in and they were going to be in his courtroom, etc.

We tried to make a tactical decision. There was an election coming up. There had never been a Republican elected in Etowah County in the history of memory, and Roy Moore was running as a Republican. We had a hope that if we let this thing die down it would take care of itself. Unfortunately, it didn't. Whatever political future Roy Moore has, he owes to me!

He got elected and we filed the lawsuit in federal court. We asked a court to order Moore to remove the Ten Commandments from his courtroom and to stop instructing juries to pray. Plaintiffs include Gloria Hershiser from the Alabama Freethought Association [the Foundation's Alabama chapter], and two other people who live in the Gadsden area, as well as the Association itself. We drew what we thought to be a fairly reasonable judge. We were wrong. We knew we were in trouble when we came into the courtroom for the hearing and the judge announced to everybody in the courtroom that he wanted it understood that in his court he opened the court session with "Oyez, oyez, all rise . . . blah, blah, blah . . . God save the United States and this court," and he was not changing it!

Unlike most of the cases involving Ten Commandments in very public locations such as in foyers of courthouses, or outside of them, Judge Roy Moore has a plaque that he made by hand hanging in his courtroom just to the side of his chair. If you go as a citizen of Etowah County to do business at that courthouse, whatever it may be--pay your taxes, buy your car tags, get your driver's license--you do not have to see what's hanging in Roy Moore's courtroom. He was also very careful to make it known nobody from the county had anything to do with maintaining or cleaning it. There is no county expense, no taxpayer money being used. There is not taxpayer standing because there are no tax dollars involved--there is simply citizen standing with a prospective injury. The judge ruled that the fact that three of our plaintiffs might be called for jury duty in Etowah County and might have to see the plaque was not enough of a connection to allow them standing. To this day we don't understand how the federal judge got around organizational standing. He managed to simply say we don't have standing and blow us out of court.

Had it not been for our governor, who feels the need to interject himself into everything dealing with the religious right, we probably would have been in worse shape than we are now. Here's the big picture: We're suing a judge. The Attorney General's office hired private council as special assistant to the Attorney General to represent Judge Moore in this case. (Apparently there was nobody in the Attorney General's office with the competency to do it themselves.) The Governor and the Attorney General filed a lawsuit in state court in Montgomery (we were in federal court in Birmingham) suing the ACLU of Alabama, the Alabama Freethought Association, Gloria and both of our other plaintiffs, and Judge Roy Moore! Why? We have no idea. The Governor and the Attorney General sued all of us, as defendants, and had the Attorney General's office representing the plaintiffs and Roy Moore.

We filed a motion to remove the case to federal court. Judge Moore, as a defendant, objected, and it is now in federal court on the removal motion to determine what is going to happen.

The curious thing about this lawsuit is that the Governor and the Attorney General's office sued on the basis that the state had the ability to regulate prayer in the courtroom and had chosen to give that decision-making power to the individual judges. Judge Moore filed an answer to that saying, in effect, that that is was bologna and you couldn't tell him what to do in his courtroom. The Attorney General representing Moore and the Attorney General representing the Attorney General are now at odds over what can be done in court. It's real crazy. Nobody knows what's going to happen to it, but it's not going away.

In the meantime, Judge Moore has become something of a darling to the Christian Coalition. He went to their conference in Washington, D.C. Apparently he's being held out as some kind of a martyr. There are some frightening aspects to what is going on with him. To give you just a taste of the kind of person he is, a story was relayed to me by another judge whom I know very well. They were at a judicial conference in the spring and my friend, who had met Roy Moore but didn't know him real well, went up to Moore and said, "Judge Moore, how are you doing today?" Judge Moore replied, "God and I are fine, thank you."

Judge Moore, through the Christian Coalition, has a legal defense fund. This is a man who is being represented by attorneys who are being paid by the state of Alabama, with our tax dollars! He now has a legal defense fund in excess of $200,000. The real question in Alabama is: what is he going to do with that? There is some fear that he is not going to stay in his judicial position, that we have given him a springboard to bigger and better things. All we can do is hope that people will see that he is as bizarre as he really is.

What I have found most depressing from my standpoint has not been the prayer or the Ten Commandments or having to deal with Judge Moore or his people. What has distressed me is the real fear and concern that I have seen as I travel to people's homes to talk to them about state/church abuses. I can tell you firsthand that I appreciate what they go through because it's not fun. I've probably been up in the Gadsden area six times or more talking and interviewing people who are angry with what goes on, who want changes done, but will not stand up and do anything.

What comes to my mind as I talk with them and watch their responses is a quotation from Edmund Burke: "The only thing necessary for the triumph of evil is for good men to do nothing." That is where I see this country going. I think the vast majority of people do not like what is going on, but I think they are afraid, so afraid that many of them are paralyzed.

Realizing that there are more plaintiffs sitting in this group than I could probably possibly ever hope to find again, I've come to give you a message. For those of you who have been plaintiffs: thank you. To those of you who find yourselves in the position where you're wondering whether you should or you shouldn't be, there is no real choice. No matter how many good lawyers you have, if you don't have the people willing to come forward and stand up, then there's nothing to be done. Where you have that opportunity, consider it seriously. There's got to be a way for organizations like this and the other organizations that share your view on the separation of church and state to interact and support the people who are willing to go out there and be plaintiffs. There's got to be a network created.

If it is important to you, if you say it means a lot to you, then it's important to take those convictions and make them true. Some of the people that have been most aggrieved in their lives by the things that go on are not freethinkers, as you define it, they're religious people. They're simply people who don't share the religious belief of what's going on around them. There are many Christians who have complained to me about what goes on in their schools. That they don't like the prayers, they don't like this, they don't like that. But they are unwilling to come forward. I have teachers who come and complain to me about the praying at faculty meetings. When I say to them, "Let me write a letter for you, let me intervene for you," they say, no I can't do that, I'll lose my job or I'll get thrown out or something will happen. I understand, they're hurting and they're troubled. It took me a long time to come to this conclusion, but now I say to them that until they are willing to let me do whatever I can for them, quit calling me!

To give you a little idea of what kinds of things we deal with, we filed a lawsuit asking for injunctive relief--for the court to order that the praying be stopped and the Ten Commandments be removed. Yet, I had heard in some of the solicitations that had been done for Judge Moore that we are after him, his assets and his home. That we want to ruin his family so that his children can never go on to school, we want everything he's ever going to have.

The amount of misinformation that comes out of the Christian Coalition is amazing; it's mind-boggling. In fact, when Roy Moore was on the radio with Dean Young, the head of the Alabama Christian Coalition, Moore made that statement and on radio I called him a liar. I told him that if he had any proof of that I'd like to see it, to which he just went into this rage about the ACLU supporting pornography and abortion and everything else. These people will say anything they can to any audience they have to avoid revealing their real agenda. For example, in April of this year, the Anti-Defamation League of B'nai B'rith held their 17th annual leadership conference in Washington. Lo and behold, an emissary was sent from afar by the name of Ralph Reed. According to the New York Times and The Atlanta Constitution, Ralph Reed, Jr., told the gathering it was a "blatant wrong for some on the religious right to talk about the United States as a Christian Nation." The Christian Coalition believes that the separation of church and state is complete and involatile. (If you believe that, I have some swamp land I'd like to talk to you about.)

When I gave this Ralph Reed quote on the radio, the first thing that I was told was that I had misquoted. The second thing I was told was that these are liberal newspapers, anyhow, and you couldn't believe what they said. I pointed out that this was carried on C-Span live and on the late broadcast and I had seen it myself!

Make the Christian Coalition accountable for their statements--because they won't have anything to back them up. It's no different than most of their biblical interpretations, they're just pulling it out of the air.

Be brave.


Chair of the Litigation Committee of the ACLU-Alabama, Joel L. Sogol is lead counsel in Alabama Freethought Association v. Judge Ray Moore. He was graduated from the University of Wisconsin-Milwaukee in 1970, and got his law degree in 1973 from the University of Alabama School of Law. He teaches law at the University of Alabama School of Law in Tuscaloosa, Alabama, and maintains a general practice involving civil, domestic and criminal matters.