Posted on 08/15/2003 2:30:08 PM PDT by Lurking Libertarian
Ala. AG Won't Help Judge in Federal Fight By BOB JOHNSON Associated Press Writer
MONTGOMERY, Ala. (AP)--The attorney general and Alabama Supreme Court associate justices are distancing themselves from the state's chief justice, who has pledged to defy a federal court order to remove a Ten Commandments monument from the state's judicial building.
Chief Justice Roy Moore said Thursday he had ``no intention'' of obeying the order to remove the monument from the building, where he moved it in the middle of the night in 2001. He has said that the Ten Commandments represent the moral foundation of American law.
Attorney General Bill Pryor said Thursday he would refuse to help Moore violate the court order, which could result in contempt fines of about $5,000 a day against the state. He declined to say what specific action he would take.
At the same time, Moore's colleagues on the state Supreme Court met to discuss whether they can invoke a state law that lets a majority of the nine justices overrule an administrative action by the chief justice.
Senior Associate Justice Gorman Houston said the justices ``will take whatever steps are necessary'' to make certain that the state of doesn't have to pay fines.
But the justices took no immediate action as Moore prepared to file his initial pleading Friday with the U.S. Supreme Court to stop any removal of the monument.
Meanwhile, attorneys suing to remove the monument filed a complaint Thursday with the Alabama Judicial Inquiry Commission accusing Moore of violating judicial ethics by refusing to obey a court order.
Supporters cheered Moore's claim that a federal court doesn't have the legal authority to make a state judge remove the monument.
``It's so rare to find someone who would make a stand,'' said Rick Scarborough, president of Vision America, a national association of churches and pastors who have supported Moore.
Pryor said he personally believes the Old Testament laws can be displayed legally but that doesn't change his responsibility as attorney general.
``I have a duty to obey all orders of courts even when I disagree with those orders,'' Pryor said in a statement.
Moore's declaration came six days before the courts' Aug. 20 deadline for the 5,300-pound granite monument to be removed from the judicial building rotunda, where it is in clear sight of visitors coming in the main entrance.
With Christian groups planning several rallies over the next week to show support of the monument, the executive director of Americans United for Separation of Church and State, Barry Lynn, accused Moore of creating a circus out of the Ten Commandments issue.
``If Judge Moore can't in good conscience comply with a lawful federal court order, he ought to resign,'' Lynn said.
Novak went on to assert that the framers of the Constitution wanted to acknowledge as the source of all individual liberties the Judeo-Christian God.
"The blessings of liberty will not be present unless there is a frequent recurrence to fundamental principles. Otherwise it is like a comet that blazes and is forgotten," said Novak, an expert on religion and culture. "The government should consistently note the source of that belief, because if it weakens in public it becomes ineffectual."
But Edwin Gaustad, a professor emeritus of history and religion at the University of California Riverside, disagreed, saying James Madison and Thomas Jefferson – the two men most responsible for the First Amendment – believed government and religion ought to be kept as far apart as possible.
"Chief Justice Moore was saying that it was written to protect the role of God in government, that the purpose of the First Amendment was to protect the government to make public proclamations on God," Gaustad said. "I disagree. It was to protect the religious liberties of the citizens of the new nation."
"If you consult any reputable historian, they would find it a gross misstatement of the purpose of the First Amendment," he continued. "It is to protect the religious liberties of its citizens, not promote a public piety."
(lots of the "true conservatives" around here don't buy this)MY COMMENT
Moore had the monument, along with other references to God, installed in the rotunda of the Judicial Building six months after he was elected chief justice in 2000.
Plaintiffs have testified earlier that Moore has made the Judicial Building more of a church than a courthouse.
During Gaustad's testimony, Judge Thompson asked him if it would help if "there was a disclaimer at the bottom of the monument saying, 'We're not compelling anyone to believe.'"
"The disclaimer would help. Moving it to private property would help more," said Gaustad.
Attorneys gave their closing arguments yesterday. There was no word on when a ruling was expected.
Lamb's Chapel v. Center Moriches School District 508 US 384 (1993)
JUSTICE SCALIA, with whom JUSTICE THOMAS joins, concurring in the judgment.
As to the Court's invocation of the Lemon test: like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys of Center Moriches Union Free School District. Its most recent burial, only last Term, was, to be sure, not fully six feet under: Our decision in Lee v. Weisman, 505 U.S. 577, 586 -587 (1992), conspicuously avoided using the supposed "test," but also declined the invitation to repudiate it. Over the years, however, no fewer than five of the currently sitting Justices have, in their own opinions, personally driven pencils through the creature's heart (the author of today's opinion repeatedly), and a sixth has joined an opinion doing so. See, e.g., Weisman, supra, at 644 (SCALIA, J., joined by, inter alios, THOMAS, J., dissenting); Allegheny County v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U.S. 573, 655 -657 (1989) (KENNEDY, J., concurring in judgment in part and dissenting in part); Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327, 346 -349 (1987) (O'CONNOR, J., concurring in judgment); Wallace v. Jaffree, 472 U.S. 38, 107 -113 (1985) (REHNQUIST, J., dissenting); id., at 90-91 (WHITE, J., dissenting); School Dist. of Grand Rapids v. Ball, 473 U.S. 373, 400 (1985) (WHITE, J., dissenting); Widmar v. Vincent, 454 U.S. 263, 282 (1981) (WHITE, J., dissenting); New York v. Cathedral Academy, 434 U.S. 125 , [508 U.S. 385, 399] 134-135 (1977) (WHITE, J., dissenting); Roemer v. Board of Pub. Works, of Md., 426 U.S. 736, 768 (1976) (WHITE, J., concurring in judgment); Committee for Public Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 820 (1973) (WHITE, J., dissenting).
The secret of the Lemon test's survival, I think, is that it is so easy to kill. It is there to scare us (and our audience) when we wish it to do so, but we can command it to return to the tomb at will. See, e.g., Lynch v. Donnelly, 465 U.S. 668, 679 (1984) (noting instances in which Court has not applied Lemon test). When we wish to strike down a practice it forbids, we invoke it, see, e.g., Aguilar v. Fenton, 473 U.S. 402 (1985) (striking down state remedial education program administered in part in parochial schools); when we wish to uphold a practice it forbids, we ignore it entirely, see Marsh v. Chambers, 463 U.S. 783 (1983) (upholding state legislative chaplains). Sometimes, we take a middle course, calling its three prongs "no more than helpful signposts," Hunt v. McNair, 413 U.S. 734, 741 (1973). Such a docile and useful monster is worth keeping around, at least in a somnolent state; one never knows when one might need him.
For my part, I agree with the long list of constitutional scholars who have criticized Lemon and bemoaned the strange Establishment Clause geometry of crooked lines and wavering shapes its intermittent use has produced. See, e.g., Choper, The Establishment Clause and Aid to Parochial Schools - An Update, 75 Calif.L.Rev. 5 (1987); Marshall, "We Know It When We See It": The Supreme Court and Establishment, 59 S.Cal.L.Rev. 495 (1986); McConnell, Accommodation of Religion, 1985 S.Ct. Rev. 1; Kurland, The Religion Clauses and the Burger Court, 34 Cath. U.L.Rev. 1 (1984); R. Cord, Separation of Church and State (1982); Choper, The Religion Clauses of the First Amendment: Reconciling the Conflict, 41 U.Pitt.L.Rev. 673 (1980). I will decline to apply Lemon - whether it validates [508 U.S. 385, 400] or invalidates the government action in question - and therefore cannot Join the opinion of the Court today.
Thomas Jefferson, as a state legislator, voted for laws respecting the establishement of religion.
Now what?
What is the basis of just law?
"To compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhors, is sinful and tyrannical." - Thomas Jefferson: Statute for Religious Freedom, 1779.
"[The clergy] believe that any portion of power confided to me [as President] will be exerted in opposition to their schemes. And they believe rightly: for I have sworn upon the altar of god, eternal hostility against every form of tyranny over the mind of man. But this is all they have to fear from me: and enough, too, in their opinion." - Thomas Jefferson to Benjamin Rush, 1800.
"The day will come when the mystical generation of Jesus, by the Supreme Being as his father, in the womb of a virgin, will be classed with the fable of the generation of Minerva in the brain of Jupiter." - Thomas Jefferson, Jefferson's Works, Vol. IV, p. 365, Randolph's ed.
I like this...I think I will post this in my college classroom!
Don't get me going! ( ;
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