ANDALUSIA, Ala. A south Alabama judge's decision to wear a judicial robe embroidered with the Ten Commandments could spark another prolonged legal battle in the state, according to legal experts.
This time there will be another issue involved: personal expression.
Covington County Circuit Judge Ashley McKathan began hearing cases while wearing a robe embroidered with the Ten Commandments on Dec. 13, saying he felt compelled to defend his belief that modern law is based on Scripture.
Terry Butts, who helped defend Roy Moore in a judicial inquiry that led to Moore's removal as chief justice of Alabama's Supreme Court, said McKathan's situation was similar because both cases "have to do with the First Amendment right to acknowledge God."
"I think the chances of McKathan's case winding up in court are very good," Butts told the Mobile Register in a story on Christmas Day. "I am confident someone will file a complaint with the Judicial Inquiry Commission and/or in Circuit Court to have the robe with the Commandments removed. McKathan may well be successful this time due to the issue of self-expression."
McKathan told the Associated Press that the Ten Commandments represented the truth "and you can't divorce the law from the truth."
Moore was removed from the bench in 2003 for refusing to remove a Ten Commandments monument from the rotunda of the Alabama Judicial Building in Montgomery.
Bryan Fair, a professor and constitutional law expert at the University of Alabama, said the display on McKathan's robe could be seen as state sponsorship of a religious message. He predicted it would lead to another court battle.
"The state does not have a religion," Fair said. "When judges in the courtroom embrace one religion, they inherently reject the others. Judges are state representatives, and their judicial work is not religious work."
But others say McKathan's decision involves freedom of expression as well as separation of church and state because the Commandments display is on clothing, not a courtroom wall or in a lobby.
"It is a much more personal thing," said attorney Mike Jones, who also represented Moore during the judicial inquiry.
"Freedom of expression issues may play out with McKathan that were not involved in Moore's case. It will be interesting to see what transpires."
Cases pending from Texas and Kentucky before the U.S. Supreme Court should give some clarification on which displays are acceptable, Fair said.
McKathan has expressed his support for Moore, who rode into the state's highest court on a wave of support for his battle to display a Ten Commandments plaque in his Etowah County courtroom.
Jones said Moore's case began when several people complained that the monument was personally offensive to them. Andalusia attorney Riley Powell filed a motion objecting to McKathan's judicial robe and asking that his client's case be continued. He said McKathan denied both motions.