Looking For a Judge to Boot? Here's One

By Andrew Cohen

There are an awful lot of people around the country these days who want to get rid of an awful lot of state judges -- not because the targeted jurists are drunks or louts or crooks or creeps but because they've written opinions with which they, The People, happen to disagree. In Iowa, to use just the most dramatic recent example, three of the state's supreme court justices were voted off the bench last November after a furious conservative campaign against them. Their perceived crime against society? They each had voted, as part of a unanimous 2009 ruling, to strike down Iowa's ban on same-sex marriage.

State judges have always been more vulnerable to the political or moral or religious whims of the majority. They have none of the life-tenure their federal counterparts enjoy by virtue of Article III of the Constitution. Because they tend to hear more cases, and to resolve more local disputes, state judges tend to make more enemies-- or at least live and work closer to the enemies they make. This has always been so. California Supreme Court Justice Rose Bird was kicked off the court in 1986 because of her opposition to the death penalty. Ditto for Judge Penny White in Tennessee in 1996.

These stories, of earnest judges giving way to popular will, are still, for now anyway, the exceptions. Although heavily-financed, politics-style judicial election and retention campaigns are now sharply on the rise across the country, most of the judges who are removed from the bench still lose their jobs the old-fashioned way. Over time, or perhaps in a blink, they reveal themselves as professionally or personally unfit to continue to serve as neutral, objective arbiters of their community's disputes. And it usually has nothing to do with the merits of their decisions.

Which brings me, at last, to the story of a state judge who really should be voted off the bench. Not because of any of his decisions, which I assume were all issued in good faith, or even because of his evident litigiousness, which I find only slightly unnerving. No, here's a fellow who needs to leave the bench because he's made it clear for the past decade or so that, on the whole, he'd rather be a religious tribune than a dispassionate jurist anyway. And Lord knows you can't be both at the same time. 

Richland County (Ohio) Common Pleas Court Judge James Deweese might have passed his whole judicial career in obscurity had he not decided, in 2000, to hang a poster of the Ten Commandments on the wall of his courtroom as part of a larger display. When he was asked to take it down, first by the American Civil Liberties Union and subsequently by a federal trial judge, he refused. Instead, Judge Deweese took his case and his cause all the way to the 6th U.S. Circuit Court of Appeals. Here is how that court described his motivation for displaying the poster. Judge Deweese's plan was:

to use [it] occasionally in educational efforts when community groups come to the courtroom and ask [him] to speak to them. These documents are useful in talking about the origins of law and legal philosophy and about the rule of law as opposed to the rule of man. [DeWeese] . . . chose the Ten Commandments because they were emblematic of moral absolutism and [Deweese] chose them to express the belief that law comes either from God or man, and to express his belief that God is the ultimate authority.

You will likely not be surprised to learn that the federal appeals court ordered Judge Deweese to take down his poster as a violation of the Establishment Clause of the First Amendment, which is designed in part to separate church and state. There has been a cavalcade of litigation over the past few decades over the place of religion in or around courts. Some religious symbols have stayed. Others have been forced to go. The full list of Commandments on a wall inside a courtroom? With a judge who liked to preach to court visitors about how law comes from God? Not a close call (although one appeals court judge dissented).   

Now, put yourself in Judge Deweese's robe at that point. Even though you thought you were doing the right thing, perhaps even a noble thing, you've just been schooled by a federal appeals court over inappropriately bringing religion into your civil courtroom. The judges issuing the ruling are not merely your superiors. They are orders of magnitude higher than you on the judicial food chain. What many reasonable local judges in Deweese's position would have done at that point was to put their heads down, get back to work, and focus upon being the best common pleas court judge in the history of Richland County, Ohio. I know that's what I would have tried to do in those circumstances.

But that's not what Judge Deweese did. In 2006, just a few years after the 6th Circuit spoke, he put up in his courtroom another poster of the Ten Commandments. This time, in an effort to comply with what he perceived to be existing First Amendment precedent, he added to Moses' epic proclamation a few choice tidbits of his own. He labeled the poster "Philosophies of Law in Conflict." Before the familiar commandments, Judge Deweese included the words:

1. There is a conflict of legal and moral philosophies raging in the United States. That conflict is between moral relativism and moral absolutism. We are moving towards moral relativism.

2. All law is legislated morality. The only question is whose morality. Because morality is based on faith, there is no such thing as religious neutrality in law or morality.

3. Ultimately, there are only two views: Either God is the final authority, and we acknowledge His unchanging standards of behavior. Or man is the final authority, and standards of behavior change at the whim of individuals or societies. Here are examples.

The Commandments followed on the poster under the headline "Moral Absolutes." There was another column for "Moral Relatives." And at the bottom of the poster was yet another message from the judge.

4. The cases passing through this courtroom demonstrate we are paying a high cost in increased crime and other social ills for moving from moral absolutism to moral relativism since the mid 20th century. Our Founders saw the necessity of moral absolutes. President John Adams said, "We have no government armed with power capable of contending with human passions unbridled by morality and religion. Our Constitution was made for a moral and religious people. It is wholly inadequate for the government of any other." The Declaration of Independence acknowledges God as Creator, Lawgiver, "Supreme Judge of the World," and the One who providentially superintends the affairs of men. Ohio's Constitution acknowledges Almighty God as the source of our freedom.

I join the Founders in personally acknowledging the importance of Almighty God's fixed moral standards for restoring the moral fabric of this nation.

Judge James DeWeese.

When the American Civil Liberties Union found out about Judge Deweese's new poster, the organization first sought to have the jurist held in contempt for violating the 6th Circuit's 2004 ruling. Again, Judge Deweese litigated the matter. Again he did not back down and simply put the poster away. He won that battle -- a federal judge ruled that since Judge Deweese's poster was a new and different one, the original court order could not apply.

So again the ACLU sued Judge Deweese. And again a federal trial judge ruled that his Ten Commandments poster, with its added comments this time, was still unconstitutional when placed inside a courtroom. And again the 6th Circuit -- just Wednesday -- told him to take it down. This paragraph, from the court's new ruling, gives you a sense of what the federal courts think of the matter.

Defendant's stated purpose for hanging the poster is 'to express [his] views about two warring legal philosophies that motivate behavior and the consequences that [he] ha[s] personally witnessed in [his] 18 years as a trial judge of moving to a moral relativist philosophy and abandoning a moral absolutist legal philosophy.' It is questionable whether Defendant has articulated a facially secular purpose. However, assuming for the sake of argument that Defendant has stated a facially secular purpose, and giving that stated purpose its due deference, the history of Defendant's actions demonstrates that any purported secular purpose is a sham.

All this federal litigation! From a state court judge. And not to defend himself from professional complaint or criminal indictment. Not to play defense but to play offense; to try to vindicate in a professional setting a private right of religious liberty and free expression. Of course, like anyone else, James Deweese has a man-made right to believe that God's law prevails over man. He can shout it from the rooftops if he wants. He can become a genuine soldier in the army of God, for all the Constitution cares. His posters can provide fire and brimstone. But he can't do any of it from the judicial bench while on the public payroll sitting in a courtroom built by taxpayer funds.

Judge James Deweese has no constitutional right to foist his religious beliefs upon others in a public courtroom. He doesn't have the right to create even the appearance that he'll abide by "God's law" above "man's law," which here in America we call the Constitution. That's certainly not what his oath of office suggested he would do. And the fact that's been unable or unwilling to accept those basic legal and ethical premises for the past decade or so tells me he that he values the expression of his religious beliefs more than he values the the restraints and responsibilities of his office. He wants to be an advocate for a cause more than he wants to be an impartial arbiter and (whether or not you agree with that cause) there is no place in our legal system for such a judge.

Through his persistent and public dedication to his own private religious beliefs, Judge Deweese has forfeited his right to be presumed impartial, objective, and unbiased. It's no more complicated than that. So all you true "judicial activists" out there, all you folks who spent millions upon millions of dollars in the last election cycle voting down judges because they disagreed with you about a topic or two, here, finally, is an apt candidate for your campaigns of fury. Here is a judge who doesn't obey the law. Here's a judge who unnecessarily cost taxpayers plenty -- and overworked federal judges their precious time -- with his litigious defense of his unconstitutional posters.

Here's a judge who clearly doesn't want to be one. So I'm waiting for the campaign against Judge Deweese, the one that will enable him, at last, to become the fleeting cable star and dinner speaker he so clearly wants to be. The one that will finally relieve him of his secular misery of his taxpayer-funded job inside an un-postered courtroom. The one that will free him to speak publicly about those things in which he believes. I am sure there are plenty of other men and women in or around Richland County, Ohio, who would be honored to replace him, and capable of doing so-- and who would better manage to stay off the 6th Circuit's docket for a reasonable period of time.

This article available online at:

http://www.theatlantic.com/national/archive/2011/02/looking-for-a-judge-to-boot-heres-one/70631/