Here is a story that combines almost all my areas of interest: law in the US, law in the UK, history, and religion.
Sir Edward Coke (pronounced “cook”) was a barrister and a judge in 17th century England, where he both represented and judged some of the most famous cases in common law history—many of the effects of which are still seen in UK and US law. His writings influenced the 3rd, 4th, and 16th Amendments of the US Constitution. More unsavory parts of his legacy (at least to modern minds) would be his strong statements against what that world called “heretics” and “witches” and his virulent opposition to Roman Catholicism.
One of Coke’s sayings is “Non sub homine sed sub deo et lege,” which means “Not under man, but under God and law,” an obvious reflection of the time. This saying is inscribed above the bench of the Supreme Court of Rhode Island, and was placed there during construction sometime around 1930. It has been challenged by a local attorney as an unconstitutional endorsement of religion by the government, thus violating the First and Fourteenth Amendments. (Gelfuso v Suttell in the USDC for the District of Rhode Island, filed on March 2, 2015. You can read the complaint here.)
The plaintiff also cites a publication by the Chief Justice of the Supreme Court, about the Supreme Court, which described the history of the quote in a positive and perhaps endorsing manner. The complaint goes on to state that Coke was actually a persecutor of religion and of questionable prosecutorial and political tactics. The complaint spends a few paragraphs on a personal item: the marriage of his daughter to one of the King’s older male relatives in order to gain favor. The Complaint refers to her as a “teenager”and “under age,” and that she and her mother fled London, but were captured and returned, creating a well-known incident. (This part caused me to question the motives or tactics of the Complaint. The term and concept of a “teenager” had no meaning in Coke’s world (it developed around 1900); Coke’s daughter was not “under age” in that world; forced marriages were not uncommon; the “incident” came about because the daughter subsequently (and allegedly) had an affair and a child with another man, though she eventually returned to her husband and he adopted the child as his heir. The drafter of the complaint is either ignorant of history and culture, or hopes everyone else is.) The complaint discusses many of Coke’s rulings and writings, specifically his view of equality, religion, and society.
Therefore, the complaint says that the inscription deprives the plaintiff of his rights under the First and Fourteenth Amendment, and has therefore been harmed. He asked for a declaration to that effect, and both that the inscription be taken down and that he publication of the Chief Justice be removed from distribution.
Courts have traditionally upheld general religious statements or displays which merely reference historical solemnity or connection (such as “in God we Trust” upon our coins). If, on the other hand, it appears to endorse religion or promote a specific religion, it may well be declared unconstitutional. (The Ten Commandments displayed in Kentucky courthouses in 2005 was an unconstitutional promotion of a religious message. McCreary County v ACLU (2005, 6th Cir.; see the Westlaw cite here with subscription.)
In a brief review of similar cases over the past ten years, it seems to be a tenuous connection that a general quote by Lord Coke about the law endorses his time-bound and culturally-located views on religion, thereby imputing it to the courthouse and damaging anyone who might happen to read it. I would expect this one to be resolved in favor of the defendants, but one can never tell with such hot-button and emotional issues.
Notes
- It may be of no consequence, but the plaintiff was recently suspended from practicing law for a month.
- Rhode Island has been the place of many similar lawsuit against the public display of religions symbols or texts: Lee v. Weisman on school prayer, for instance (1992, US; Westlaw cite here with subscription.)