The Ten-Commandments-Wearing Judge
Very similar effects arise from Judge McKathan's antics. 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.
Indeed, when it comes to religion, an independent Constitutional mandate makes that crystal clear. The Establishment Clause is violated if the government' action has the purpose or effect of furthering or hindering religion, or if the government has endorsed a particular religious (or anti-religious) viewpoint. Here, there is no question that Judge McKathan has the purpose of furthering the Christian tradition. Nor is there any question that he is personally endorsing a particular religious doctrine. On both counts then, he flagrantly violated the Establishment Clause.
Imagine a defendant who appears before Judge McKathan and who is accused of stealing, or who has a history of adultery. Would he be unreasonable to believe he will be judged by the Ten Commandments, not secular law? Of course not. Moreover, where does the Judge's resort to the Bible rather than the code to determine the law end? The punishments in the Old Testament are a far cry from those required by law in this country. Nor would he be unreasonable to believe that he will receive harsher justice than a defendant whom the judge views as a "good Christian." Any non-Christian is going to feel disenfranchised, and rightly so.
In short, this judge is advocating a theocracy. If he does not agree to remove the robe, he should be removed from the bench -- as soon as possible. His viewpoint is fundamentally at odds with the still emerging, rich pluralism that is the product of the balance struck by both of our Religion Clauses: The Free Exercise Clause, which protects diverse religious belief and expression, and the Establishment Clause, which establishes a balance of power between government and religion.
The Need to Separate Personal Views and Beliefs From the Exercise of Public Office
The rules are simple: When the judge is acting in his personal capacity - say, at church, or in the public square -- he has every right to proclaim his devotion to his faith, including its traditions. More power to him. But when he presides over a trial, he may not use his position to broadcast his religious views.
The same goes for the terminated police officer. When on the force, he could be forced to divorce his private activities from his official duties and identity. But once he is off the force, he may do as he likes.
In the end, common sense is at the base of constitutional law, and especially, at the foundation of the First Amendment. Judges must be--and appear to be--neutral, despite the culture wars. And police officers must act in ways that are not unbecoming to their office, regardless of their sexual inclinations.
The bottom line is this: The First Amendment is a source of ordered liberty, not a blessing for public officials' narcissism and self-promotion.
