Amendment One...What Does It Do?

Nov 5, 2018

The Ten Commandments posted in the lobby of the Foundation for Moral Law in Montgomery
Credit Stan Ingold / Alabama Public Radio

Alabama has a long and complicated history with the Ten Commandments from the Old Testament of the Bible. This election day, voters will decide if that relationship will continue as is. 

           When actor Charleton Heston delivered the Ten Commandments in the 1956 Cecil B. DeMille movie classic, his Moses didn’t seem interested in politics. Two thousand years later, here in Alabama, things are different…

            “I’ve been working on this off and on for about 14 years. I’ve passed it a number of times out of the legislature in the Senate, but it would die in the House.

That is state senator Gerald Dial. He is the author of Senate Bill 181 that eventually became Amendment One on the upcoming ballot. This will allow the display of the Ten Commandments in a constitutional manner on public property. It’s just the latest legislative attempt to do so. Dial says the political climate is better…

 “We’ve had a dynamic shift in the makeup of the legislature, both the house and the senate. The majority of Republicans in the house and the senate, so we just felt like we were very fortunate.”  

Alabama State Senator Gerald Dial
Credit Stan Ingold / Alabama Public Radio

I spoke with Dial as he was cleaning out his office in the state house after thirty five years in the Alabama senate. Dial says some goodwill from his colleagues may have helped overcome concerns about and legislating religion.

As you know this is my last term in the senate. I kindly leaned on them and said “Hey I won’t be back, let’s do this.” I may have gotten a few sympathy votes to make this a priority, not that the bill isn’t a priority but sympathy that “hey we need to pass senator Dial’s bill, it’s his last time and he’d like to do this and he’s been persistent on this.”

This constitutional amendment could cause some problems. That’s the view of Randall Marshall. He’s the executive director of the American Civil Liberties Union of Alabama. Marshall says some people may not fully understand the amendment…

I think the effect of this amendment is actually going to be to invite litigation against schools districts that post the ten commandments standing alone thinking they are allowed to do so.”

Marshall adds this amendment doesn’t do anything new…

There is a provision in there though that says “provided they’re posted in a constitutional manner” therein lies the rub because the amendment doesn’t provide anything that’s not already lawful. If a school can post the Ten Commandments in a constitutional manner there’s nothing to prevent it from doing so now.”

However, Senator Dial disagrees.

It would give those officials in charge of that building the opportunity if they desire, to put the Ten Commandments and not worry about being sued as an individual. If it’s in our constitution they’re following the laws of the state of Alabama, then if you’ve got problems with the Ten Commandments being in the city hall, then you’ve got to sue the state of Alabama to change the constitution. So it relieves that legal responsibility from those who want to put the Ten Commandments in.

ACLU of Alabama Executive Director Randall Marshall
Credit Stan Ingold / Alabama Public Radio

Marshall says that is not the case…

That’s clearly wrong. From a legal stand point and I am a lawyer, he’s just flat wrong. There would be no obligation to sue the state and in fact, you don’t have a cause of action against the state, you have a cause of action against the school district that’s operating in an unconstitutional manner.”

These fights can get expensive, costing hundreds of thousands up into the millions of dollars in legal fees. Senator Dial says there is a provision that prohibits the use of public funds to defend the constitutionality of this amendment…

We’ve had outside sources not only from in state, out of state who have stepped up and volunteered and said “we will hire the attorneys and we will pay their costs and we will take it through the process.” So we will leave that up to those organizations and I feel certain they are more than willing to do that.

Marshall has doubts about that too…

What the senator is missing, is that no outside organization is going to come in and say “not only will we defend you, but we will pay the other side’s attorney’s fees if we lose. There’s no organization out there that will do that, that is why a school district would still be on the hook for hundreds of thousands of dollars.

Someone who’s spent a lot of time on the losing end of fights over the Ten Commandments in Alabama is former Alabama Chief Justice Roy Moore…

Well, I displayed them in the supreme court in 2001, I believe it was and by 2003 there had been a complaint filed with the federal district court which ordered the ten commandments removed and I refused to remove them and for that I was basically removed from office by the judicial inquiry commission, not by the federal court but by the judicial inquiry commission.

An Alabama ethics panel kicked Roy Moore out as chief justice in 2003 for refusing to  

Former Alabama Chief Justice Roy Moore
Credit Stan Ingold / Alabama Public Radio

remove a Ten Commandments monument from the lobby of the state judicial building…

It was a legal fight. Most people think it was just a religious fight. It was about the acknowledgement of God it wasn’t about the display of the Ten Commandments that was made clear by the federal district court. It said the question was “can the state acknowledge God?” and he said “No.” and I submit to you “the state DOES acknowledge God in many ways, in law.

Moore says the state’s relationship with the Ten Commandments is complicated…

I’ve been a longtime supporter of the ten commandments. As you know there is a history of displaying the Ten Commandments in the supreme court of Alabama, which by the way, they’re still displayed there, only in a different form. They’re displayed in a historical context. After I was removed from office for displaying the Ten Commandments, they put them in the capitol.”

Now it is up to the voters to decide the fate of Amendment One. If it does pass one of the key factors is to remember that the Ten Commandments, if posted, must be done in a constitutional manner. Randall Marshall thinks many people may not understand that…

I think it’s inevitable, I would hope before either a school district or some other government entity does it that they get good counsel. Because, the clearest violation that’s going to get one of those entities in trouble would be to all by itself put up the Ten Commandments.”