One way to get elected chief justice of the Alabama Supreme Court, it appears, is to thumb your nose at the U.S. Supreme Court. That’s how an obscure circuit judge named Roy S. Moore got the job in November 2000. Now Moore has made an even bigger splash by clownishly defying (until recently) federal court orders requiring removal of the 5,280-pound granite monument to the Ten Commandments that he had installed in the rotunda of the state judicial building.

An outrage? The House of Representatives thought so. Its beef was not with Moore, but with the federal judges who had ordered Moore’s monument removed. The House voted on July 23 to bar the Justice Department from using federal funds to implement the judges’ rulings. The vote was 260-161; among Republicans, an even more disgraceful 210-13.

Moore’s eight associate justices showed more respect for the rule of law. On August 21, they unanimously ordered "Roy’s rock," as the locals call it, removed from public view, and it was finally done on August 27. A state judicial ethics panel suspended Moore on August 22 for defying the federal court orders, pending a hearing before another panel that has the power to discipline or remove judges.

The antics of Moore, and of the House, call to mind a broader question: In its drive to purge the public square of endorsements and even accommodations of religion, has the Supreme Court stretched the Constitution’s ban on "establishment of religion" too far? The answer is a qualified yes, in my view. While the lower courts have been quite right in Moore’s case, and while the Supreme Court’s major establishment-clause decisions seem correct on their facts, some of the justices’ opinions exude indifference, or even hostility, to the interests of religious believers in maintaining innocuous ceremonial traditions that have long been sponsored by governments. Clowns such as Moore would have a harder time rallying such large constituencies if the high court justices mustered a bit more common sense and tolerance.

They will have an opportunity to do that in two other cases that are in the pipeline. In the first, which the Bush administration has urged the Court to review, a federal appeals court infamously ordered "under God" excised from the Pledge of Allegiance, at least when recited in public school classrooms. In the second, another federal appeals court barred the Virginia Military Institute from having a brief, nondenominational prayer read by a chaplain to students before supper every evening.

The justices should reverse both appeals courts. They should also junk the feckless, 32-year-old, three-part "test" that they have sporadically invoked in establishment-clause cases, and replace it with a commonsense distinction between governmental bows to religion that are nonsectarian, rooted in tradition, and impose no real burden on dissenters, on the one hand, and religious exercises that are unconstitutionally coercive, sectarian, or discriminatory, on the other.

While no such distinction can be entirely clear and consistent, Moore’s in-your-face, grandiose, graven image undoubtedly falls on the unconstitutional side of the border. This is not to deny that less-obtrusive displays of the Ten Commandments in government buildings–when combined with secular symbols of law–are constitutional. Both inside and outside walls of the Supreme Court’s own building, for example, display friezes of Moses holding up (unreadable) tablets, surrounded by other historic lawgivers.

It was by posting a stand-alone, hand-carved wooden plaque of the Ten Commandments in his courtroom, and by injecting Christian and Jewish prayers into jury-organizing sessions, that then-Judge Moore rose from obscurity in 1995, with the help of a highly publicized legal challenge that was eventually dismissed on procedural grounds. Courtrooms, like classrooms, have an inherently coercive atmosphere, especially for people legally required to be there. And Moore’s courtroom religious exercises flouted the spirit of Supreme Court precedents barring state-sponsored religious activities in public schools, including a 1984 decision (Stone v. Graham) voiding a Kentucky law that had mandated the posting of the Ten Commandments in all classrooms.

Moore was elected chief justice in November 2000, after campaigning as the "Ten Commandments judge." The onetime professional kickboxer installed his monument to the Decalogue in the most conspicuous possible place in the judiciary building, where all who enter must see it. "He did so in order to remind all Alabama citizens of, among other things, his belief in the sovereignty of the Judeo-Christian God over both the state and the church," Judge Ed Carnes wrote on July 1, for the U.S. Court of Appeals for the 11th Circuit. Carnes, a conservative Bush I appointee, acidly likened Moore to segregationist governors including George C. Wallace of Alabama "who attempted to defy federal court orders during an earlier era."

While Roy’s rock is gone, some of Moore’s many fervent supporters hope that he will run for governor next. If he does, he will owe at least some of his support to understandable popular outrage at other, more questionable court decisions, especially the 9th Circuit’s effort to excise "under God" from the Pledge of Allegiance and the 4th Circuit’s ban on supper prayers at VMI. Unfortunately, both rulings are plausible interpretations of the Supreme Court’s overly sweeping denunciations of government-sanctioned endorsements of religion in its decisions barring state-sponsored prayers at public school graduations (in 1992, in Lee v. Weisman) and football games (in 2000, in Santa Fe Independent School District v. Doe). "It may now be unconstitutional for a public school teacher or student leader to recite the Pledge of Allegiance in class," I wrote after the latter decision. "Or at a football game. Or at a graduation. Or to recite the Declaration of Independence. Or to sing the national anthem." All of them mention God.

The facts of that case did raise real constitutional problems, because the pre-game prayers were sponsored by school officials who had also chastised children for holding minority religious beliefs. But Justice John Paul Stevens went overboard in stating for the majority that student-led prayers at high school graduations and football games have "the improper effect of coercing those present to participate in an act of religious worship"–even if nobody is required or urged to join in the prayers, or even to attend. Stevens also suggested that pregame prayers would be unconstitutional even if initiated by students without official prompting, because dissenters would still feel "isolation and affront." This echoed Justice Sandra Day O’Connor’s overly broad contention, in various opinions since 1984, that the Constitution forbids any government endorsement of religion that "sends a message to non-adherents that they are outsiders, not full members of the political community."

The sad fact is that millions of people feel like outsiders every day, usually for reasons having little to do with religion. The burden of hearing religious believers talk about God at public events ranks too low on the scale of oppression to warrant a constitutional remedy. The Court’s long-standing ban on state sponsorship of supposedly "voluntary" classroom prayer makes sense because impressionable schoolchildren inevitably feel strong pressure to participate. But there is far less pressure in the context of graduation ceremonies and football games. And even in classrooms, the tiny minority of children who find "under God" offensive can, if they wish, easily, and undetectably, skip those words when reciting the Pledge. Or they can skip the whole thing.

Such vague government references to God have "no tendency to establish a religion in this country or to suppress anyone’s exercise, or non-exercise, of religion," Judge Ferdinand F. Fernandez wrote in dissent from the Pledge decision, "except in the fevered eye of persons who most fervently would like to drive all tincture of religion out of the public life of our polity."

The decision barring supper prayers at VMI extended the Supreme Court’s ban on prayer in public elementary and secondary schools for the first time to state colleges. This was a mistake. College students are old enough to vote, to serve in military combat units, and, presumably, to listen to brief, nonsectarian official prayers without feeling coerced to participate. Nobody is required to join in VMI’s supper prayer or, for that matter, to attend VMI.

In an August 13 dissent from the 4th Circuit’s 6-6 vote to deny a rehearing of the VMI case, Judge J. Harvie Wilkinson III wrote: "When courts push too insistently at shared understandings and accommodations–reached over time and given meaning through the customs and rituals of observance–they risk inflaming the sorts of religious passion [and division] that the establishment clause was designed to prevent." Amen.