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2. See Berman, Harold J., Law and Logos, 44 DePaul L Rev 143, 159–60 (1994)Google Scholar; Carter, Stephen L., The Culture of Disbelief 208 (Basic Books, 1993)Google Scholar (The Ten Commandments have had a “significant impact on the development of the secular legal codes of the Western World.”).

3. Committee Touts Constitution and Christianity 5, in Ariz Capitol Times (Oct 20, 1995).

4. Noonan, John T. Jr., The Believers and the Powers that Are 4 (Macmillan Pub Co, 1987)Google Scholar; Berman, Harold J., Religion and Law: The First Amendment in Historical Perspective, 35 Emory L J 777, 788–89 (1986)Google Scholar. Professor Berman has written extensively on the relationship between Christianity and the law while advocating greater integration of the two spheres. See The Interaction of Law and Religion (Abington Press, 1974)Google Scholar; Law and Logos, 44 DePaul L Rev 143 (1994)Google Scholar; The Religious Sources of General Contract Law: An Historical Perspective, 4 J Law & Relig 103 (1986)CrossRefGoogle Scholar; The Religious Foundations of Western Law, 24 Cath U L Rev 490 (1975)Google Scholar; The Influence of Christianity Upon the Development of Law, 12 Okla L Rev 86 (1959)Google Scholar.

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6. See Kuntz, Paul Grimley, The Ten Commandments on Schoolroom Walls? Why did the Supreme Court Reject the 1978 Statute (Stone v Graham)? Could Such a Law Succeed?, 9 U Fla J L & Pub Pol 1 (1997)Google Scholar; Gray, William P. Jr., The Ten Commandments and the Ten Amendments: A Case Study in Religious Freedom in Alabama, 49 Ala L Rev 509 (Winter 1998)Google Scholar.

7. See Taking the Commandments Public A3, in Wash Post (Feb 8, 2000) (documenting Ten Commandments proposals in ten state legislatures).

8. The initial case brought in federal court by the Alabama Freethought Association and ACLU was dismissed for lack of standing. See 893 F Supp 1522 (ND Ala 1995) (The suit also challenged Judge Moore's practice of having local Christian clergy deliver prayers at the beginning of each jury session). Following that dismissal, the Alabama Attorney General sued both ACLU and Judge Moore in state court seeking declaratory judgment on the constitutionality of the practices. On February 10, 1997, Circuit Court Judge Charles Price held both practices unconstitutional. No 95-919-PR (Ala Cir Ct Feb 10, 1997). After substantial briefing by the parties and a number of amici, the Alabama Supreme Court vacated the circuit court decision in January 1998, finding that the controversy was not justiciable. Ex parte State of Alabama v ACLU of Alabama, 711 S 2d 952 (Ala, 1998). See also Lubet, Steven, The Ten Commandments in Alabama, 15 Constitutional Comment 471 (Fall 1998)Google Scholar; Comment, Alabama v ACLU: A Missed Opportunity to Correct Flawed Establishment Clause Jurisprudence, 11 Regent U L Rev 193 (1999)Google Scholar.

9. H Con R 31, 105th Cong, 1st Sess (March 5, 1997). House Backs Ten Commandment Display B10, in NY Times (March 6, 1997). More recently, on June 16, 1999, in the wake of the student shootings at Columbine High School in Littleton, Colorado, the House of Representatives voted 248 to 180 allow for the posting of the Ten Commandments in public schools. See H.R. 1501, Consequences for Juvenile Offenders Act of 1999 106th Cong, 1st Sess (June 16, 1999).

10. Affidavit of Roy S. Moore, ex H, at 3; Brief of Appellant Roy S. Moore at xii. For an overview of the case and the arguments of the proponents, see Gray, The Ten Commandments (cited in note 6). See also Moore, Roy S., Religion in the Public Square, 29 Cumb L Rev 347 (1998–1999)Google Scholar.

11. 711 S 2d at 964. See also Suhre v Haywood Co, 55 F Supp 2d 384 (W.D. NC, 1999) (upholding constitutionality a courtroom base relief containing “Lady Justice” and the Ten Commandments on ground the “display touts nothing more than an effort to recall the origin of modern law, by reference to an ancient source of law and justice.”).

12. Taylor's Case, 3 Keble, 607, 621 (K.B., 1676); People v Ruggles, 8 Johns 290 (NY 1811); Updegraph v Commonwealth, 11 Serg. and Rawle 394 (Pa, 1822).

13. Howe, Mark deWolf, The Garden and the Wilderness: Religion and Government in American Constitutional History 28 (U Chi Press, 1965)Google Scholar. “This fact seems to me to constitute persuasive evidence that it was a common assumption in the first decades of the nineteenth century that state governments may properly become the supporters and the friends of religion.” Id.

14. Stone v Graham, 449 US 39, 41 (1980). Judge N. Williams, Jr., of the Franklin Co Ky Circuit Court upheld the statute writing:

Appendix to Petition for Writ of Certiorari in Stone v Graham, No 80-321, at 34.

15. 449 US at 41.

16. Id at 45 (Rehnquist, J., dissenting).

17. In his opinion in ACLU v Co of Allegheny, 492 US 573, 652 (1989), Justice John Paul Stevens referred to Moses on the frieze in the Supreme Court courtroom as one of the “great lawgivers” despite noting that his inclusion conveyed “an equivocal message, perhaps of respect for Judaism, for religion in general, or for law.” Id.

18. Compare Harvey v Cobb Co, 811 F Supp 669 (ND Ga 1993), aff'd mem., 15 F 3d 1097 (11th Cir), cert denied, 511 US 1129 (1994); Doe v Harlan Co Sch D, 2000 WL 562161 (E.D. Ky 2000); ACLU v McCreay Co, 2000 WL 562165 (E.D. Ky 2000); ACLU v Pulaski Co, 2000 WL 562168 (E.D. Ky 2000); Ring v Grand Forks Pub Sch D, 483 F Supp 272 (ND 1980); Baker v City of Manhattan, Kan, No 99-2159-KHV (D. Kan 1999); DiLoreto v Bd of Educ, 87 Cal Rptr 2d 791 (Ct App 1999); and Young v Co of Charleston, No. 97-CP-10-3491 (SC Com Pls 1997), with Books v City of Elkhart, 79 F Supp 2d 979 (ND Ind 1999); Suhre v Haywood Co, (cited in note 11); State v Freedom From Relig Found, 898 P 2d 1013 (Colo 1995); Anderson v Salt Lake City Corp, 475 F 2d 29 (10th Cir 1973); and Scott v Commonwealth, 497 SW 2d 561, 563 (Ky App 1973) (rejecting defendant's claim that jury was prejudiced by presence of Ten Commandments in courtroom). See also DiLoreto v Downey Unified Sch D, 196 F 3d 958 (9th Cir 1999) (upholding school district refusal to post Ten Commandments on high school baseball field); Shea v Blister, 26 F Supp 2d 943 (SD Tex 1998) (finding attorney lacks standing to challenge Ten Commandments posted in courtroom). Public schools, with their captive audiences of impressionable children, represent a unique context. It is generally understood that a Ten Commandments' display in a public school building is unconstitutional regardless of the justification. See Stone, Harlan County & Ring.

19. See Brooks v City of Elkhart, 79 F Supp 2d 979 at 989 (ND 1999) (noting that the Ten Commandments has “great historical and legal significance in this country”); State v Freedom From Relig Found, 898 P 2d 1013 at 1018 (1995) (noting the uncontroverted testimony of expert witnesses “that the Ten Commandments are the basis for many of our secular laws.”). Accord Anderson, 475 F 2d 29 (1973) at 33.

20. People v Knapp III, 113 AD2d 154, 495 N.Y.S. 2d 985. 989 (App Div 1985).

21. See Everson v Bd of Educ, 330 US 1 (1947) (employing historical analysis); McCollum v Bd of Educ, 333 US 203, 212 (1948) (Frankfurter, J.) (same); Engel v Vitale, 370 US 421 (1962) (same); Marsh v Chambers, 463 US 783 (1983) (same); Lynch v Donnelly, 465 US 668 (1984) (same); cf. Abington Sch D v Schempp, 374 US 203, 234 (1962) (Brennan, J., concurring) (“[A]n awareness of history and an appreciation of the Founding Fathers do not always resolve concrete problems.”).

22. Ky Rev Stat Ann § 158.178(2) (Banks-Bladwin 1980) (repealed 1981).

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109. Updegraph v Commonwealth, 11 Serg and Rawle 394, 399, 401 (Pa, 1822).

110. Kilgour v Miles, 6 Gill and Johns 268 (Md, 1834) (Sunday law); City Council v Benjamin, 2 Strob 508 (SC, 1846) (same); Shover v State, 10 Ark 259 (1850) (same); State v Ambs, 20 Mo 215 (1854) (same); Jackson v Gridley, 18 Johns. 98 (NY, 1820) (oath); Atwood v Welton, 7 Conn 66 (1828) (same).

111. Lindenmuller v The People, 33 Barb 548, 567, 569 (NY Sup, 1861).

112. City Council v Benjamin, 2 Strob 508, 523 (SC, 1845). See also Commonwealth v Wolf, 3 Serg. and Rawle 48 (Pa, 1817).

113. People v Hoym, 20 How Prac 76, 78-79 (NY Super, 1860); accord Campbell v Int'l Ins Co, 4 Bos 312 (NY Super, 1859).

114. Fox v Abel, 2 Conn 541, 554 (1818).

115. Neal v Crew, 12 Ga 93, 100 (1852).

116. See People v Hoym, 20 How Prac 76 (NY Super, 1860); Kountz v Price, 40 Miss 341 (1866); Rosenbaum v State, 199 SW 388 (Ark, 1917).

117. See Green, Rhetoric and Reality appendix (cited in note 90); Banner, Stuart, When Christianity Was Part of the Common Law, 16 L & Hist Rev 27 (Spring 1998)CrossRefGoogle Scholar.

118. Sedgwick, Theodore, A Treatise on the Rules which Govern the Interpretation and Construction of Statutory and Constitutional Law 17 (J.S. Voorhies, 1857)Google Scholar.

119. State v Williams, 26 NC 400, 403 (1844); Melvin v Easley, 52 NC 356, 360 (1860); see also State v Brooksbank, 28 NC 73 (1845); Rodman v Robinson, 47 SE19, 21 (NC 1904) (“It is incorrect to say that Christianity is part of the common law of die land, however it may be in England where there is a union of church and state, which is forbidden here …. [I]t is by [its] influence that it acts, and not because it is a part of the organic law, which expressly denied religion any place in the supervision or control of secular affairs.”).

120. Andrew v NY Bible & Prayer Book Soc'y, 4 Sandf. 156, 182 (NY Super, 1850); Ex parte Newman, 9 Cal 502, 512-13 (1858) (Bennett, J.); Sparhawk v Union Passenger Railway Co, 54 Pa 401, 432-52 (1867) (Read, J.).

121. Pearce v Atwood, 13 Mass 324, 345-46 (1816).

122. Id. Noting that “some among our ancestors so far regarded the laws of Moses as of perpetual obligation,” none of the “rigid laws of Moses” held sway in the Commonwealth. Id at 346.

123. Id at 348.

124. State v Chandler, 2 Har 553, 556-557 (Del, 1838).

125. Id at 561. “By this it is meant, that the courts will judicially notice … what is the prevailing religion of the people.” Id at 562. “[T]he christian religion is a part of those laws, so far that blasphemy against it is punishable, while the people prefer it as their religion, and no longer. The moment they change it and adopt another, as they may do, the new religion becomes in the same sense, a part of the law, for their courts are bound to yield it faith and credit, and respect it as their religion.” Id at 572.

126. Specht v Commonwealth, 8 Pa 312 (1848). Specht insisted that to justify the Sunday law on the Fourth Commandment “compels all to observe Sunday as a sacred day …. The doctrine that the ‘Christian religion is a part of the common law,’ is, I suppose, the foundation and justification for this act. That doctrine was promulgated in the worst of times, and by the worst men of a government that avowedly united church and state; in times when men were sent to the block or the stake on any frivolous charge of heresy.” Id at 314-15.

127. Id at 321, 324.

128. Sparhawk v Union Passenger Railway Co, 54 Pa 401, 432-52 (1867) (Read, J. concurring). The significance of the decision and concurrence is highlighted by the court's reversal of a preliminary injunction issued by Justice William Strong, sitting at nisi prius, which had been based entirely on the maxim: “[I]f Christianity is a part of the common law, it carries with it a civil obligation to abstain on the Lord's day from all worldly labor and business, except works of necessity and mercy.” Id at 406.

129. See Theisen v McDaniel, 16 So 321, 323 (Fla, 1894) (“The fourth commandment of the Decalogue is, ‘Remember the Sabbath Day, to keep it holy.’ What would be said of the public morals of a city whose laws permitted the general conduct of all classes of business enterprises on that day?”); Schreifels v Schreifels, 287 P 2d 1001, 1005 (Wash, 1955) (remarking in a custody proceeding that “[a]dultery, whether promiscuous or not, violates one of the Ten Commandments and the statutes of this state.”).