Roy Moore: Right Idea-Wrong Argument?

This is a partial transcript of Special Report with Brit Hume, August 28, that has been edited for clarity.

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BRIT HUME, HOST: The federal judge in that Alabama case ruled that the Ten Commandments (search) display in the courthouse was unconstitutional, a violation of the First Amendment (search). So, what exactly does the First Amendment actually say and what has the court said about it?

Joining us now is our favorite law professor, Jonathan Turley of George Washington University.

Jonathan, before we start here, I want to take a look at one poll result. This a Gallup poll just out, quite straightforward question. Do you approve, it asks, of the federal court order to remove the Ten Commandments monument? Look at this number, 77 percent say no, 19 percent say yes, the rest undecided.

Now, the language of the First Amendment is, "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof." What is the phrase "an establishment of religion" mean?

JONATHAN TURLEY, LAW PROFESSOR, THE GEO. WASH. UNIV.: Well, that's a phrase that has occupied many Supreme Courts throughout our history. Justices have divided as to what it means. Clearly at the beginning of our republic, the framers were most concerned about a church of the United States, like the Church of England, being imposed upon everyone else.

HUME: An official religion.

TURLEY: Absolutely. But the establishment clause came to mean something more. It came to mean essentially that wall of separation. Now, when you talk about separation of church and state and the wall that separates those two things...

HUME: Let me just stop you just for a second. The phrase "separation of church and state," does that appear in the Constitution anywhere?

TURLEY: It doesn't, it came from Thomas.

HUME: What about "wall"?

TURLEY: Well, no. It actually came from Thomas Jefferson (search) in a letter that he wrote. And it really sort of encapsulated one view of the First Amendment that we're trying to keep this a secular government where people of faith are guaranteed free exercise. But the government remains in a position where it's not entangled with any given faith.

Well, obviously as a nation filled with faithful people, of various religions, we have historically had to re-examine that line. Now, the Supreme Court has been gradually changing the test. And in a case called Lynch, the court focused the attention of lower courts on whether a reasonable person, an objective person, would view a particular symbol as endorsing religion.

HUME: So, this would deal with all these religious symbols: "In God we trust" on the money, religious displays such as at Christmas in the public square somewhere, the presence of tablets and Moses himself and various art work around Washington, including on the front of the Supreme Court itself.

The test for those things…there he is. This is from the Supreme Court. There's Moses. There is some of the commandments in his very hand there.

TURLEY: He has been seen on Capitol Hill.

HUME: Right. Now what would the court…what reasonable test would the court apply that would make that come out OK and this one in Alabama not?

TURLEY: Well, the Supreme Court has never said that Moses cannot be seen in the vicinity of a courthouse. Rather, the test is whether there is an exclusive emphasis, an endorsement of a given religion. Where you have symbols like Moses or the Ten Commandments that are in context of a more historical relief...

HUME: So you might have Moses, you might have Hammurabi, you might have any number of these people.

TURLEY: That's right.

HUME: And they can say that's a representation of a historical reality, that these are antecedents to our legal system?

TURLEY: That's right, because anyone looking at that would not say, oh, they are endorsing the Judaic or Christian traditions. It is when you have an exclusive representation. And in this sense, Roy Moore actually proved to be his worst enemy.

HUME: How so?

TURLEY: That is, the statements that he made in connection to the monument all but sealed his fate and the monument's fate. That is, if he really wanted to keep the monument, he could have developed a more historical argument that this is a relief that it's part of a large historical treatment in the courthouse itself.

But instead he emphasized that this was about religion. It was about faith. It was about Christianity. When someone used the term God, he says when I use God, I mean Jesus Christ. And so he went out of his way to supply a record...

HUME: In other words, he emphasized that this was a sectarian display in his own intention of it.

TURLEY: Absolutely. That's rightful

HUME: That hurt him legally because?

TURLEY: Well, because that really did lead to the view of an objective person that this was an endorsement of religion, a very particular sector of religion. You compare that to the recent Third Circuit case in the Free Thought Society case. There, the court of appeals looked at a plaque that had been on the courthouse building and found that it could remain...

HUME: Because?

TURLEY: Because it had been there for over 80 years. It was viewed as a historical part of the courthouse. And so that's the difference between the cases.

HUME: And it would seem then, that if you want to have…you can have these religious displays, but they better not appear to be saying, hey, this is my faith, you believe it, too.

TURLEY: That's right.

HUME: All right. Jonathan Turley, thank you very much.

TURLEY: Thanks, Brit.

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