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Professor Harold J. Berman of the Emory University School of Law in Atlanta says some of his friends are “afraid of the Christian right.” That’s why they objected to his joining Pat Robertson’s legal group — the American Center for Law and Justice — in a U.S. Supreme Court brief that supports Texas’ Ten Commandments monument at the state Capitol. The ACLJ’s brief is one of dozens submitted for today’s oral arguments over the Texas monument and Ten Commandments displays in two Kentucky courthouses. The 87-year-old Berman says his participation does not mean he agrees with Robertson’s conservative politics, or his penchant for using religion to bolster his political views. In 2003, Robertson launched a campaign urging supporters to pray that three liberal justices of the high court “will be led by God to step down … so we can have three conservatives who will interpret the Constitution, not try to rewrite it.” Berman acknowledges that his work on the brief could “be exploited by people who want to preach Christianity from the bench” — something he would oppose. “I’d be outraged,” he says, if someone wanted to place a painting of Jesus’ Last Supper in a courthouse. But he adds he wouldn’t have joined the ACLJ’s brief if he weren’t sympathetic to its argument that the Texas display is constitutional. The high court is reviewing a decision of the 5th U.S. Circuit Court of Appeals that said a 6-foot-high Ten Commandments monument did not equate to Texas’ endorsing religion but rather to the state’s highlighting the document’s role in the development of Texas law. Van Orden v. Perry, 351 F.3d 173 (2003). The part of the ACLJ brief authored by Berman says removing the Ten Commandments from courthouses and other public areas because it refers to the God of Israel as a source of fundamental legal obligations “would be similar to requiring the removal of the Declaration of Independence because it refers to ‘Nature’s God’ and to �the Creator’” as the source of equality of all people. Berman, whose books on the foundation of Western law have been translated into eight languages, says he is concerned that people no longer are taught that the American legal system was founded on Judeo-Christian beliefs. “You can’t have law without beliefs,” adds Berman, whose expertise in Russian law led him to become a fellow of the Carter Center. The ACLJ wanted Berman on the brief because he is a prominent legal historian, says Francis J. Manion, the group’s senior counsel. “He’s so well-known,” says Manion. “I’ve cited his stuff for years.” A legal-database search shows that Berman’s legal histories have been used to support judicial writings on church-state relations. In 1994, Judge Diarmuid F. O’Scannlain of the 9th Circuit cited Berman in a case in which the court said a 51-foot cross in an Oregon public park violated the First Amendment’s ban on state-established religion. While agreeing with the court’s decision, O’Scannlain argued that the country’s founders did not desire a complete separation of church and state. As support, the judge cited an article in which Berman wrote: “It must be concluded that the establishment clause of the first amendment, drafted not by the Deist [Thomas] Jefferson, but by the Protestant Christian James Madison, was not intended to prevent any government aid to religion but was intended rather to prevent the establishment of a national religion.” Separation of Church and State Committee v. City of Eugene, 93 F.3d 617 (1994). In 2003, a panel of the 3rd Circuit that upheld a Ten Commandments monument outside a Pennsylvania courthouse cited an article by Berman that said that King Alfred founded English common law, on which American law is based, on the Ten Commandments. In the decision, Judge Edward R. Becker noted that the commandment against taking the Lord’s name in vain is applied in current legal procedure by witnesses’ swearing to uphold the law with the phrase “so help me God.” Freethought Society v. Chester County, 334 F.3d 247 (2003). Steven K. Green, a former general counsel to Americans United for Separation of Church and State who now teaches constitutional law at Willamette University College of Law in Salem, Ore., says he is “disappointed” Berman lent his prestige to the ACLJ’s brief. Green authored a high court brief on behalf of legal historians who side with Ten Commandments challengers in the Kentucky case. He also is slated to debate Berman on the Ten Commandments at an October conference of legal historians. “I fully acknowledge that principles of the Ten Commandments are inspirational” in today’s law, Green says. But he adds that “there is very little to support” that the Ten Commandments directly influenced modern law. Only a handful of 450 cases he reviewed from the 18th and 19th centuries refer to them.

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