Posted on 08/12/2003 9:22:49 PM PDT by DPB101
An amendment to a pending spending bill could block federal marshals from enforcing a federal court order to remove a massive replica of the Ten Commandments from the Alabama State Judicial Building in Montgomery.
Rep. John Hostettler's amendment to the Commerce, State and Justice spending bill adds another element to the religious wars that have broken out of late on Capitol Hill. In recent weeks, Republicans have accused Democrats of operating an anti-catholic litmus test that prevents orthodox Catholics who oppose abortion from being confirmed to the federal bench.
Hostettler (R-Ind.) told The Hill: "It's plain clear that Congress can do this because according to Article 1, Section 8, and Article 3, given that we create 1/8the courts 3/8, we also fund them. It's a very excellent civics lesson that once a federal court says something it is not law."
He added: "I do think the 11th Circuit opinion is unlawful," referring to the unanimous appeals panel ruling that affirmed U.S. District Judge Myron H. Thompson's order that Alabama Chief Justice Roy S. Moore remove the 5,280-pound monument from the rotunda of the building by Aug. 20.
Although the spending bill, which has cleared the House, has not been signed into law. If the Senate goes along, it could create a constitutional crisis should Moore defy the federal court order to remove the monument.
During the trial, Moore testified that he intended to teach the citizens of Alabama that God's law trumps laws ordained by men, such as the U.S. Constitution, if the two are seen to be in conflict.
Moore's spokesman told The Hill that he will announce tomorrow whether he will abide by the Aug. 20 deadline.
On the political front, Democrats and their likeminded pressure groups view the dispute over the Ten Commandments as a positive development in the fight to block Alabama Attorney General William H. Pryor's nomination to the 11th Circuit Court of Appeals.
Pryor, who has defended Moore's actions -- and as a state official could remove the Ten Commandments if Moore does not -- has been the focus of anti-Catholic charges leveled at Democrats by Republican senators.
Democrats say Pryor's nomination cannot be rehabilitated and are reluctant to challenge Pryor to enforce the federal court order. Democrats' allies downplayed the controversy and said that court orders should be enforced as a matter of course.
"Certainly if Pryor failed to obey the court order to remove the Ten Commandments sculpture, that would be further evidence of his unfitness for the bench," said Louis Bograd, legal director of the Alliance for Justice.
Thompson ruled, and the 11th Circuit Court of Appeals agreed, that the sculpture's presence in a public building violates the establishment clause of the First Amendment because "(its) primary effect is to advance religion."
The establishment clause of the First Amendment states: "Congress shall make no law respecting an establishment of religion, or prohibiting free exercise thereof."
Judge Ed Carnes, writing for a three-judge panel on the 11th Circuit, said that Supreme Court precedent held: "The establishment clause applies to the states through the due process clause of the Fourteenth Amendment."
Hostettler said that Carnes's opinion was written so that the Supreme Court would not overturn his ruling but that past rulings involving issues of separation of church and state have been misapplied.
"If a state or federal building ... (wanted a) creche or Star of David or Ten Commandments, it's up to the law of the people," he said.
Moore, for his part, has said federal courts lack jurisdiction in the matter. But Carnes likened Moore to "those Southern governors who attempted to defy federal integration court orders during an earlier era."
Moore's spokesman said Carnes "went out of the way to attack him personally."
However, Thompson said: "The court, at this time, does not envision a scenario in which there would be any physical confrontation between state and federal officials."
He added that he would rely on substantial fines against the state, perhaps starting as high as $5,000 per day and doubling after the first week, if Moore failed to oblige his ruling.
Only if Moore and all other state officers failed to uphold the order would federal marshals take over the job.
Some conservative legal scholars scoff at Hostettler's legislative sleight of hand.
"The spending clause does not authorize Congress to violate the Constitution," said Ronald Rotunda, a law professor at George Mason University and Federalist Society member: "There is a broad power to the spending clause, but there are limits and this crosses it."
Noah Feldman, a law professor at New York University, predicted Hostettler's amendment would have no practical effect.
"If we think the courts went too far, are we going to say no money (to read defendants their) Miranda (rights)?" Feldman asked.
He added the amendment is "totally out of keeping with the Constitution. It is incredibly radical. (Hostettler) ... is using funding power to get power that legislature does not otherwise have. It's a good attention grabber."
Both scholars said federal marshals' salaries would be paid in any event. Moreover, the amendment does not specify actions, such as holding Moore in contempt and incarcerating him, that fall beyond the appropriations process.
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