Thou Shalt Not Dis' The Judiciary

Attorney Andrew Cohen analyzes legal issues for CBSNews.com and CBS News.

Here's one man's opinion.

Moore's stand last year in Alabama was as much about defiance of federal judges as it was about what the first amendment says - or does not say - about religious symbols in public buildings. Moore refused to back down even after a federal appeals court backed up a federal trial judge who had ruled that "Roy's Rock" had to be taken out of the rotunda of a state building in Montgomery.

He committed the legal sin of public defiance of the law; a grave matter made even more astonishing and unacceptable by virtue of Moore's calling (at the time) as the state's chief legal symbol.

Had the Justices agreed even just to hear the former judge's appeal, it might have been interpreted on some level as legitimizing Moore's legal position, not to mention his illegal conduct.

Moore's supporters immediately would have said: "See? The Court thinks it's a close call, otherwise the Justices wouldn't have accepted the case." And by tacitly legitimizing Moore's role in his Ten Commandments' dispute, the Justices would have implicitly signaled the lower courts that their conduct in that case was worthy of review.

Even though the Justices felt that the first amendment questions raised in Moore's case were worthy of review, they were unwilling to signal the nation that the lower courts incorrectly applied first amendment law.

They did want to resolve the Establishment Clause issues raised in Moore's case - but without giving Moore the soapbox from which to share his views. They wanted to let the nation's judiciary know that the High Court "has their back." So here is what those smart Justices did.

They turned Moore down flat and in so doing made it quite clear that no one - not even a fellow judge - can flout a federal court order and get away with it. But then just one week later they accepted two other cases that will help resolve some of the issues Moore was trying to raise through his appeal.

The two cases bring with them all of the meat of the former judge's case but without all the unnecessary and unseemly gristle. Now we will see how the first amendment issues play out with Moore acting only as a sideshow instead of the main event.

It's a win-win for the Court, for lower court judges who would love a little extra guidance from the Justices in this area, for the litigants in the two new cases, and for anyone else who has trouble sleeping at night worrying about whether a listing of the Ten Commandments ought to be placed in a public building.

It's also a victory for those of you out there who, like me, enjoy seeing interesting cases decided with considerably more light than heat. These Justices didn't get to where they are today because they aren't sharp, right?

So what are the two new Ten Commandment cases about? Like other controversial first amendment cases, they are about what people may or may not do when bringing religion into public life.

The Court a generation ago ruled that a copy of the Ten Commandments may not be posted in a public school classroom, part of a line of cases that have distinguished the impact "official" religious symbolism has on young people as opposed to the rest of us.

One of the questions, then, that the Justices might answer in the two current Tablets cases is whether that 1980 ruling banning the Commandments ought to be expanded to all public buildings, not just schools.

Assuming the answer to that question is "no," the Justices also should resolve whether to maintain or extend the "secular purpose" test they have imposed on religious symbolism in public places.

This is the test that did in Moore. Had he been willing to place his beloved Commandments in that courthouse alongside the Magna Carta or the Code of Hammurabi as other symbols of the genesis of American law, he very well might have been able to keep the tablets there.

When he refused to do so - refusing to acknowledge that religious symbols must also have a "secular purpose" in order to be connected to a governmental site - explicitly stating that no such test was needed or justified, his legal challenge was doomed.

Does the "secular purpose" test work? Does it not allow enough religion into our public lives? Does it allow too much? Is it hard for lower court judges to manage? How much more guidance do they need?

These are all legitimate and valuable questions that probably will be answered by the Justices before the end of the current term. And because of the manner in which the Court has agreed to answer them, because of the choice of cases the Justices have used as their forum to do so, it's a safe bet that the national conversation about this issue will be a little more subdued than it would have been had the former judge been involved. That's a good thing.

By Andrew Cohen