Marci Hamilton has an excellent column reviewing the situation with Ashley McKathan, Alabama’s latest Robin to Roy Moore’s Batman. She points out something that so many on the right want to gloss over when claiming that the judge has a free speech or free exercise right to have the Ten Commandments embroidered on his sleeve: that the conduct allowed as a private citizen is not the same as the conduct allowed while acting as a government representative. Just like in the case with the San Diego police officer who was fired for making pornographic movies while in his officer’s uniform, there is a major difference between what one may do as a government employee and what one may do as a civilian.
He undermined the dignity of his robes by making them a billboard for his personal religious beliefs. And he undermined public trust in his office – the judiciary, of course, is supposed to apply secular law, and apply it neutrally and evenhandedly, regardless of the parties’ religious beliefs.
Even worse, he suggested that the law he was applying might not be the law the People and their representatives had created, but rather the law of his own religion. Instead of wearing a black robe of sober dispassion, he came dressed to preach. And by so doing, he took direct aim at the system that is the signal achievement of the United States’ pluralist democracy.
Are the judge’s constitutional rights violated by the requirement that he wear an unadorned robe? Of course not. He can express his message – and worship as he chooses – on his own time, wearing his off-duty clothing. Neither his Free Exercise rights, nor his Free Speech rights are infringed by that distinction. All that is asked is that he refrain from using his public position to foster his personal views. As in the case of the porn-selling police officer, the point is that public office and personal speech and religion should not mix.
She is absolutely right. No one is suggesting that the judge may not activiely promote his religious beliefs every moment he is off the bench. But while he is on the bench, he may not use his position to do so. This is a completely obvious truth that the so cons would immediately embrace if a judge were to embroider anything but their favored views on a robe; let a judge put verses from the Quran on his robe and you’ll find out just how quickly their minds and their arguments would change. Because it really isn’t about free speech, it’s about government endorsement, and as long as the government is endorsing their views, they’ll defend it to the death. Once it endorses someone else’s views, they will suddenly discover the truth of the establishment clause.