PROFILE: M. Ashley McKathan By JUDITH HANEY (USNewsLink)/ December 18, 2004 Recently I had the pleasure of spending some time on the telephone with Covington County Alabama Circuit Judge M. Ashley McKathan. I found him to be learned, knowledgeable - and funny. The man has a GREAT sense of humor. "Full many a flower is born to blush unseen, And waste its sweetness on the desert air," in no way describes Ashley McKathan, a 46-year old son of the south, and powerful citizen of a sparsely populated county lying 21 miles north of the Alabama-Florida state line. Within the past week legal beagle McKathan boldly dropped a pebble into the judicial stream and the ripples are lapping upon the banks of great and small minds all over the world. The problem with the pebble is perception. McKathan's argument for freedom of fashion in judicial robing might be over the heads of some jurists and lawyers - but it is not over the heads of the common man and woman. McKathan's argument for wearing words on his judicial garment is simple: he is acting as a change agent for the purpose of drawing attention to the absence of "truth" in interpretation of the law. And in this regard critics should not make the mistake of separating the man from his argument because he is a born-again Christian.
McKathan is persuasive in his argument because he is very personable. He never meets a stranger. In talking with him for five minutes I was drawn in by his gentle, kind, friendly manner. In fact it felt as if I had known him all of my life - and his unassuming manner generated a desire to want to know him better - to be around him. What psychologically thirsty person wouldn't want to drink from his spiritual well? Given his natural tendency to bond with others, it is not difficult to understand how he has bonded with God's word.
Given the cruel turns and difficulties life has thus far offered up to Ashley McKathan, it would be the greatest unkindness of all for him to become a victim of his righteous choices of freedom of expression. Thus far, in choosing adornment of his judicial robes, McKathan has violated no laws, nor has he broken any rules or compromised his judicial ethics in any rulings. And until the U.S. Supreme Court rules otherwise, he should continue doing exactly what he is doing now, i.e., being who he is and sharing his enlightenment with others in whatever form and "fashion" he deems fit and appropriate. ADDITIONAL READING: In May, 2002, the U.S. Supreme Court divided bitterly in turning away a case involving display of a Ten Commandments monument outside a civic building. The court's three most conservative members took the rare step of announcing that they would have agreed to hear that case, prompting an angry rejoinder from one of the most liberal justices. The monument "simply reflects the Ten Commandments' role in the development of our legal system," Chief Justice William H. Rehnquist wrote for himself and Justices Antonin Scalia and Clarence Thomas. The words "I am the Lord thy God," in the first line of the monument's inscription are "rather hard to square with the proposition that the monument expresses no particular religious preference," Justice John Paul Stevens replied. Justice Oliver Wendell Holmes stated his famous aphorism about "falsely shouting fire in a theatre" and set forth a "clear and present danger test" to judge whether speech is protected by the First Amendment. "The question," he wrote, "is whether the words are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has the right to prevent. It is a question of proximity and degree." Books v.
Elkhart, 235 F.3d 292 (7thCir. 2000) Other federal
courts have also ruled that government displays of the Ten Commandments are
unconstitutional. See the following cases: The Eleventh
Circuit has held that the display of the Ten Commandments on a government building
violates the Establishment Clause of the United States Constitution. See the following
cases: In April, 2002, a constitutional amendment to allow posting of the Ten Commandments in public school classrooms died in the closing seconds of the 2002 regular session of the Alabama Legislature. The Anti-Defamation League (ADL) has urged the U.S. Supreme Court to reject the government sponsored display of the Ten Commandments on public property as unconstitutional and a violation of separation of church and state. Joined by Dr. Philip A. Cunningham, a theologian and the executive director of the Center for Christian-Jewish Learning at Boston College, the League submitted an amicus curiae brief in two cases dealing with the display of the Ten Commandments on government property. In the brief, ADL and Dr. Cunningham argue that the Ten Commandments are an inherently religious text that cannot convey a merely secular message. The brief's discussion of religious sources and scholarship underscores how the Ten Commandments are a vital expression of religious identity and symbolism – albeit one that is far from uniform or free of controversy. "The notion that there is a one-size-fits-all Ten Commandments at the heart of American law and society is convenient, but not really true," said Abraham H. Foxman, ADL National Director. "There is no way to pick one version of the Ten Commandments, display it and say that this represents American secular tradition. In doing so, you are not respecting people who are not Jewish or Christian, or who come from other religious traditions." The U.S. Supreme Court has agreed to hear cases from Texas and Kentucky dealing with the display of the Ten Commandments. The Texas case, Van Orden v. Perry, challenges the display of a six-foot-tall monument on the state capitol grounds in Austin. The other case is ACLU v. McCreary County, 96 F. Supp. 2d 679 (E.D. Ky. 2000). The ADL's brief argues that the displays, "either promote one religion's view of the Ten Commandments, ignoring the beliefs of others; or they homogenize the Ten Commandments, thereby giving official sanction to minimizing the divergent yet fundamentally religious beliefs of both Jews and Christians regarding this sacred text." UPDATE - June 27, 2005 The Supreme Court ruled Monday, June 27, 2005, that displaying the Ten Commandments on government property is constitutionally permissible in some cases but not in others. A pair of 5-4 decisions left future disputes on the contentious church-state issue to be settled case-by-case. "The court has found no single mechanical formula that can accurately draw the constitutional line in every case," wrote Justice Stephen G. Breyer. Breyer was the only justice to vote with the majority in both cases: One that struck down Ten Commandments displays inside two Kentucky courthouses and a second that allowed a 6-foot granite monument to remain on the grounds of the Texas Capitol. The court said the key to whether a display is constitutional hinges on whether there is a religious purpose behind it. But the justices acknowledged that question would often be controversial.
"The divisiveness of religion in current public life is inescapable," wrote Justice David H. Souter. He said it was important to understand the Constitution's Establishment Clause, which requires the government to stay neutral on religious belief. Questions of such belief, he said are "reserved for the conscience of the individual." In both cases, Breyer voted with the majority. In the Kentucky case barring the courthouse displays, that left him with the court's more liberal bloc where he normally votes. In the Texas case, he wound up making a majority with the more conservative justices. Justice Sandra Day O'Connor, often a swing vote, joined the liberals in both decisions. The rulings mean thousands of Ten Commandments displays around the nation will be validated if their primary purpose is to honor the nation's legal, rather than religious, traditions. Location also will be considered, with wide open lots more acceptable than schoolhouses filled with young students. "It means we'll litigate cases one at a time for decades," said Douglas Laycock, a church-state expert at the University of Texas law school, noting the decisions provide little guidance beyond the specific facts of the cases. "The next case may depend on who the next justice is, unfortunately," he said. In sharply worded opinions, Justice Antonin Scalia said a "dictatorship of a shifting Supreme Court majority" was denying the Ten Commandments' religious meaning. Religion is part of America's traditions, from a president's invocation of "God bless America" in speeches to the national motto "In God we trust." "Nothing stands behind the court's assertion that governmental affirmation of the society's belief in God is unconstitutional except the court's own say-so," Scalia wrote.
The justices voting on the prevailing side in the Kentucky case left themselves legal wiggle room, saying that some displays inside courthouses - like their own courtroom frieze - would be permissible if they were portrayed neutrally in order to honor the nation's legal history. The Supreme Court's frieze depicts Moses as well as 17 other figures including Hammurabi, Confucius, Napoleon and Chief Justice John Marshall. Moses' tablets do not have any writing. The monument on the grounds of the Texas Capitol - one of 17 historical displays on the 22-acre lot - was determined to be a legitimate tribute to the nation's legal and religious history. Chief Justice William H. Rehnquist argued that the Texas monument with the words 'I AM the LORD thy God'" was a permissible acknowledgment of religion's place in society.
Breyer, who provided the fifth vote in the holding, did not join Rehnquist's opinion. As a result, his separate concurrence, concluding that the Texas display was predominantly nonreligious and thus constitutional because it sat in a vast park, was the controlling viewpoint. The rulings were the court's first major statement on the Ten Commandments since 1980, when the justices barred display in public schools. "This is a mixed verdict, but on balance it's a win for separation of religion and government," said the Rev. Barry W. Lynn, executive director of Americans United for the Separation of Church and State. "The justices wisely refused to jettison long-standing church-state safeguards. We're thankful for that." On the other side, Jay Sekulow, chief counsel of the American Center for Law and Justice, said: "It is very encouraging that the Supreme Court understands the historical and legal significance of displaying the Ten Commandments. Unfortunately, the high court's decision in the Kentucky case is likely to create more questions." In Kentucky, two counties originally hung the copies of the Ten Commandments in their courthouses. After the ACLU filed suit, the counties modified their displays to add other documents demonstrating "America's Christian heritage," including the national motto of "In God We Trust" and a version of the Congressional Record declaring 1983 the "Year of the Bible." When a federal court ruled those displays had the effect of endorsing religion, the counties erected a third Ten Commandments display with surrounding documents such as the Bill of Rights and Star-Spangled Banner to highlight their role in "our system of law and government." The Cincinnati-based 6th U.S. Circuit Court of Appeal subsequently struck down the third display as a "sham" for the religious intent behind it. Meanwhile in Texas, the Fraternal Order of Eagles donated the exhibit to the state in 1961, and it was installed about 75 feet from the Capitol in Austin. The group gave thousands of similar monuments to American towns during the 1950s and '60s. Thomas Van Orden, a former lawyer who is now homeless, challenged the display in 2002. He lost twice in the lower courts in holdings the Supreme Court affirmed Monday. Dissenting in the Texas case, Justice John Paul Stevens argued the display was an improper government endorsement of religion. "If a state may endorse a particular deity's command to 'have no other gods before me,' it is difficult to conceive of any textual display that would run afoul of the Establishment Clause," he said. The cases are McCreary County v. ACLU, 03-1693, and Van Orden v. Perry, 03-1500. The ruling in McCreary County v. ACLU is available at: http://wid.ap.org/documents/scotus/050627mccreary.pdf The ruling in Van Orden v. Perry is available at: http://wid.ap.org/documents/scotus/050627vanorden.pdf BUT SERIOUSLY, FOLKS! The Eleventh Commandment: Thou Shalt Read My
Robes Here’s a note to my cousin Vinny. If you ever find yourself in an Alabama courtroom again, pay close attention to the Judge’s robes. They may be sending you an important message. Make that 10 important messages. Over the past few years, the 10 Commandments have stirred up more controversy in the state of Alabama than the Alabama-Auburn football game. The controversy started a couple of years ago when the Commandments — all 10 of them — showed up in the rotunda of the Alabama Supreme Court Building. They weren’t the original honest-to-God, etched-in-stone 10 Commandments that the Lord gave to Moses during a summit conference on Mount Sinai several thousand years ago. According to Exodus, chapter 32, that set was lost when Moses broke the original tablets following his descent from the mountain. That’s right, brothers and sisters. Moses broke the original 10 Commandments, and folks have been breaking them ever since. But a replacement set miraculously appeared in Alabama, carved in a monument right smack dab in the middle of the building housing the Crimson Tide state’s highest court. The 10 Commandments monument offended atheists and pointy-headed ACLU liberals, so it came to pass that a lawsuit was filed, and ultimately a decree was issued by some Federal Court Caesar Augustus that the monument had to go. Alabama Chief Justice Roy Moore, angry but not wishing to use profanity responded, “ Heck no!” He chose to defy the order and was removed from office by the Alabama Court of the Judiciary, a body comprised, no doubt, of a bunch of secular humanists. The former chief justice is now considering running for governor of Alabama. If he does, he’ll probably win in a landslide since his support of the 10 Commandments has made him the most popular man in Alabama since Bear Bryant. But while the 10 Commandments have been removed from the Alabama Supreme Court Building, they have recently resurfaced in the courthouse of the Covington County Circuit Court in Andalusia, Alabama, where they can now be seen prominently embroidered on the judicial robes of presiding Circuit Judge Ashley McKathan. Judge McKathan is a man who wears his beliefs on his sleeve. Both sleeves, in fact, and also across his chest. The judge’s robes no doubt send a strong message to everyone who appears in his courtroom. For example, if you’re called as a witness before Judge McKathan, not only will you be given an oath. You’ll also see a warning written right across the judge’s chest: THOU SHALT NOT BEAR FALSE WITNESS. Or suppose you’re some philandering deadbeat dad appearing before Judge McKathan as a defendant in a divorce case. You’ll know you’re about to have a bad day in court when the judge comes out on the bench wearing a robe emblazoned with the admonition: THOU SHALT NOT COMMIT ADULTERY. ACLU lawyers and other liberals will be relieved to know that no public funds were used in the production of Judge McKathan’s robes. He ordered the robes himself and had them embroidered using his own money. But despite the judge’s prominent robes, some Alabama lawyers are apparently just not getting the message. According to a recent article in the Mobile Register, attorney Riley Powell of Gulf Shores filed a motion objecting to Judge McKathan’s robes.I’m not quite sure how this motion was captioned. I guess it was a Motion to Require the Judge to Change his Clothes. Attorney Powell was representing an airline pilot who was to be tried by Judge McKathan on charges of driving under the influence. For the life of me, I do not know why Attorney Powell objected to Judge McKathan’s robes in that particular case. To my knowledge not one of the 10 Commandments reads: THOU SHALT NOT BE A DRUNK AIRLINE PILOT. I frankly don’t know what all the fuss is about. I’m no Johnnie Cochran, but I seriously doubt that judicial robes will affect the outcome of a trial. Suppose during the OJ trial, Judge Lance Ito had worn gold lamé judicial robes emblazoned with the commandment: THOU SHALT NOT KILL. Johnnie Cochran would have countered that effectively by wearing a three-piece suit embroidered with the Eleventh Commandment: IF IT DOESN’T FIT, YOU MUST ACQUIT! Besides, most of the 10 Commandments aren’t even applicable to your typical court case. If my cousin Vinny is representing you in a car wreck case, does it really make any difference that the judge is wearing robes that warn you not to covet your neighbor’s wife? Frankly, I think it would increase respect for the law if every judge in America followed Judge McKathan’s example and starting wearing message robes. Criminal Court judges could wear robes embroidered with the classic admonition of the great Judge Roy Bean: I’M GONNA GIVE YOU A FAIR TRIAL . . . AND THEN HANG YOU! Divorce Court judges could wear robes that say simply: CHEAPER TO KEEP HER. And Probate Court judges could wear robes that convey a final judgment: YOU CAN’T TAKE IT WITH YOU! In the unlikely event I ever become a judge, I’m going to acquire — at my own expense — my own customized robes. They won’t be black. They will be orange and will be embroidered with white lettering that says: “How ’bout them Vols?” This will send a clear and unequivocal message to any Vanderbilt Law School grad who ever appears in my courtroom. • • • Bill Haltom, a good judge of characters, is a partner with the Memphis firm of Thomason, Hendrix, Harvey, Johnson & Mitchell. He is president of the Tennessee Bar Association and is a past president of the Memphis Bar Association. Other articles by Bill Haltom include:
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McKathan believes he is obligated to live his life in the strictest
sense in accordance with God's word as set forth in the teachings of the Bible. He
believes that God's word forms the basis of law. He believes that God's word is
"truth" and that this truth has been diluted by interpretation and application
to such an extent that it no longer serves its intended purpose, i.e., for the broad
benefit of society. If one comprehends these aspects of his beliefs, then it should
surprise no one that he has embraced the premises of the Decalogue (the Ten Commandments)
which form the basis of Jewish and Christian ethical values.
McKathan, by his own admission, is going through changes in his own
life. He lost his wife in May of this year following her protracted illness. Over the past
several years, while attending to his terminally ill wife, going to work everyday to a
high-stress job, and raising a teenage son, McKathan has also shouldered the burden of
enormous financial obligations associated with his wife's illness. While these obligations
were generally met via insurance, the fact remains McKathan has been locked into an
employment regimen requiring him to stay steady in the boat for the sake of his family.
These life-altering stresses would crush a weaker man. But in truth, these difficulties
appear to have strengthened McKathan's character and reinforced his resolve to walk in the
word of God - which includes experimenting with creative forms of expression.
