In part. Both his intent and his actions are under scrutiny here. Rightly or wrongly, case law is fairly clear that the state cannot act in such a manner as to promote one sect or religion over another, nor can it act in a manner intended to promote one sect or religion over another - which law, BTW, clearly applies to Judge Moore, his claims of exemption notwithstanding. Needless to say, this involves examining the actor's intent, which the legal system does all the time in a variety of cases. As I pointed out elsewhere, I will go to jail if I intentionally shoot you, but I won't if I accidentally shoot you - or, at the very least, I will face much lesser charges in the second instance. But in both cases, you get shot either way - the only difference between them in the eyes of the law is my intent.