Ten Commandments case appealed to U.S. Supreme Court

[lukpac]

What is wrong with people? Do they not understand "separation of church and state" (apparently not)?

Somebody needs to say to these people "Look, how would you feel if this was an Islamic symbol? Or a Jewish symbol? Or a Buddhist symbol? Would you want to keep it there? Or would you want to see it go?" I think we all know what their answers would be.

Candlelight prayer vigils? For what? The building is going to collapse if they take them out? WTF?

Ten Commandments case appealed to U.S. Supreme Court

Alabama chief justice seeks to block monument's removal

Wednesday, August 20, 2003 Posted: 11:53 AM EDT (1553 GMT)

WASHINGTON (CNN) --Alabama's chief justice filed an emergency appeal Wednesday with the U.S. Supreme Court to prevent the removal of a monument inscribed with the Ten Commandments that is on display in the state's judicial building.

Two federal courts Tuesday upheld an order for the dismantling of the stone monument by the end of the day Wednesday on grounds that it is unconstitutional.

Alabama Chief Justice Roy Moore, who is an elected official, asked the high court temporarily to block enforcement of the lower courts' rulings, pending further appeals.

In a written appeal, Moore's attorney, Herbert Titus, asked the court "to permit the chief justice to fulfill the campaign promise that he made to the citizens of Alabama to restore the moral foundation of law."

The appeal was assigned to Justice Anthony Kennedy, who has the power to decide the matter himself or take it to the other eight justices for consideration. Kennedy handles appeals from the 11th U.S. Circuit Court of Appeals, which covers Alabama, Georgia and Florida.

It is uncertain if the Supreme Court will hear the matter or issue a decision on the appeal.

Supporters of the monument continue holding round-the-clock candlelight prayer vigils outside the judicial building. Several preachers led a group of about three dozen people in prayer.

One man said, "I think if you stand for this country, this whole country was founded on 'In God We Trust.' I think that if you were to put it in those terms, I think, yeah, everyone should defy it [the court order]."

Alabama Attorney General Bill Pryor said he expected the monument's removal soon.

A federal judge has threatened he may fine the state $5,000 a day if the monument is not taken down by the Wednesday deadline. U.S. District Judge Myron Thompson ruled the monument violated the constitutional ban on state promotion of religion.

Moore installed the monument two years ago in the judicial building's rotunda.

"This is not about a monument or politics or religion," Moore told CNN on Wednesday. "It's about the acknowledgment of God, and the judge made that perfectly clear in closing argument when he said the issue is, 'Can the state acknowledge God?' He simply said we cannot. And that conflicts with the Alabama Constitution, which says our justice system is established in invoking the guidance of almighty God."

[Rspaight]

"This is not about a monument or politics or religion," Moore told CNN on Wednesday. "It's about the acknowledgment of God..."

In other words, it's about delivering a big, fat "Fuck You" to everyone in Alabama who doesn't share the judge's particular religious convinctions.

Why don't they just cut to the chase and build a big stone middle finger that rotates around to flip off the whole state once an hour?

"...And that conflicts with the Alabama Constitution, which says our justice system is established in invoking the guidance of almighty God."

Which God? Whose God? That sort of non-specific reference to a deity is common in political documents of the time. It certainly doesn't carry with it the requirement to foist fundamentalist Christianity (which was pretty rare until the mid-19th century) on the populace. That argument will be (and has been) laughed out of any Federal court.

You wanna talk about the Alabama constitution? OK, cool. The one the judge is talking about is the 1901 constitution, the sixth and newest one Alabama has operated under. Interestingly, the language in the preamble about "invoking the guidance of almighty God" wasn't in the first version, from 1819. Instead, the only reference to God in the 1819 version (aside from establishing the "so help me God" oath for court proceedings) was this:

No person within this state shall, upon, any pretence, be deprived of the inestimable privilege of worshipping God in the manner most agreeable to his own conscience; nor be compelled to attend any place of worship, nor shall any one ever be obliged to pay any tythes, taxes, or other rate, for the building or repairing any place of worship, or for the maintenance of any minister or ministry.

Similarly, the 1901 Alabama Constitution contains this:

That no religion shall be established by law; that no preference shall be given by law to any religious sect, society, denomination, or mode of worship; that no one shall be compelled by law to attend any place of worship; nor to pay any tithes, taxes, or other rate for building or repairing any place of worship, or for maintaining any minister or ministry; that no religious test shall be required as a qualification to any office or public trust under this state; and that the civil rights, privileges, and capacities of any citizen shall not be in any manner affected by his religious principles.

So, yer honor, explain to me exactly how a big monument to Judeo-Christian theology in a taxpayer-maintained government building is in keeping with the Alabama constitution.

http://www.legislature.state.al.us/misc ... tions.html

Ryan

[Rspaight]

Justices order removal of Ten Commandments monument

Thursday, August 21, 2003 Posted: 12:54 PM EDT (1654 GMT)

MONTGOMERY, Alabama (CNN) -- Alabama's state Supreme Court justices overruled their chief justice on Thursday and ordered that a Ten Commandments monument be removed from its public site in the Alabama Judicial Building.

"The refusal of officers of this court to obey a binding order of a federal court of competent jurisdiction would impair the authority and ability of all of the courts of this state to enforce their judgments," the eight associate justices ruled.

The associate justices wrote that they are "bound by solemn oath to follow the law, whether they agree or disagree with it," The Associated Press reported.

A federal judge had ruled the monument violates the constitution's ban on government establishment of religion and must be removed from its public place in the rotunda. The judge had set the end of Wednesday a deadline, but Alabama Chief Justice Roy Moore said he would not move it.

Thursday's order followed a special conference of the associate justices. Alabama's senior associate justice, Gorman Houston, said last week the remainder of the court would take "whatever steps are necessary" to avoid a threatened $5,000-a-day contempt fine.

Earlier Thursday the monument had been temporarily walled off by screens from public view. The Associated Press reported that Moore's spokesman, Tom Parker, said Moore was out of town for a family funeral but decided to return to Montgomery when he learned of the screens placed around the monument.

But attorney Ayesha Khan, an attorney for the plaintiffs fighting to get the monument removed, said the associate justices' decision "just shows what an extremist Roy Moore is, than all eight of the other justices are refusing to stand with him," according to the AP.

On Wednesday Moore vowed to keep the monument in the rotunda of the state building, despite the U.S. Supreme Court's refusal to become involved in the case after it rejected Moore's emergency plea for a stay of the federal judge's order to remove the statue.

"The U.S. Supreme Court denial of a stay today will not deter me from continuing to fight for the right of our state to acknowledge God as the moral foundation of our law," Moore said in a statement.

Moore said he still has pending at the Supreme Court a writ of mandamus and prohibition, seeking to stop the order to remove the monument.

Before Thursday's action by the justices, Alabama State Attorney General Bill Pryor had said officials were prepared to remove the 3-foot-tall granite monument "very soon."

The monument was ordered removed from the judicial building by the end of the day Wednesday by U.S. District Judge Myron Thompson of Montgomery, or else the state would face fines. In his ruling, Thompson said the monument violates the constitutional ban on promotion of religion.

Moore accused Thompson of "abuse of power," "callous disregard to the people of this state" and "threatening to drain huge amounts of public funds from the state of Alabama" because of the cost of the ongoing legal battle.

Wednesday evening, more than two dozen protesters supporting Moore were arrested in the rotunda, after they refused police orders to disperse from the monument.

The case stemmed from a lawsuit filed in October 2001 by three organizations on behalf of three Alabama lawyers who often had business at the judicial building and said the monument offended them. Thompson ruled in their favor last year.

Moore appealed the decision, but in July the 11th U.S. Circuit Court of Appeals in Atlanta, Georgia, ruled unanimously that Moore violated the constitutional separation of church and state by installing the monument.

The court's ruling compared Moore to segregationist Southern governors of the past who refused to integrate college campuses even after federal court orders to do so -- and predicted that if Moore appealed to the U.S. Supreme Court he would lose. Moore told CNN that any comparison to George Wallace, the four-term Alabama governor who opposed integration of Alabama public schools, was unfounded.

"Wallace stood in the doorway to keep people out," Moore said. "We're trying to keep God in. Wallace stood for division. We're standing for unity."

Moore said he would take on other state officials who stand by Thompson's decision. "Each of them has also taken an oath to uphold the Constitution of the United States."

[balthazar]

Moore accused Thompson of "abuse of power," "callous disregard to the people of this state" and "threatening to drain huge amounts of public funds from the state of Alabama" because of the cost of the ongoing legal battle.

What about Moore's draining of public funds because of the cost of the ongoing legal battle?

Moore said he would take on other state officials who stand by Thompson's decision. "Each of them has also taken an oath to uphold the Constitution of the United States."

Ifind it incredibly ironic that Moore is not only failing to uphold the U.S. Constitution, but the Alabama Constitution as well.

[Rspaight]

Also worth investigation is the little web poll on the CNN page linked to above. When I posted the article, it was running 51-49 in favor of keeping the monument.

Ryan

[lukpac]

Justices order removal of Ten Commandments monument

"The U.S. Supreme Court denial of a stay today will not deter me from continuing to fight for the right of our state to acknowledge God as the moral foundation of our law," Moore said in a statement.

That argument *might* have some weight if the issue was "In God we trust" or something, but it doesn't here. This isn't about God as some abstract entity, but rather specific Judeo-Christian beliefs.

"Wallace stood in the doorway to keep people out," Moore said. "We're trying to keep God in. Wallace stood for division. We're standing for unity."

Apparently his next effort is to convert everyone in Alabama to Christianity. Unity indeed!

Moore said he would take on other state officials who stand by Thompson's decision. "Each of them has also taken an oath to uphold the Constitution of the United States."

Something Moore clearly isn't doing...

[Rspaight]

It just gets better and better...

------------------------------------------

Chief justice not backing down in Ten Commandments case

Friday, August 22, 2003 Posted: 2:39 AM EDT (0639 GMT)

MONTGOMERY, Alabama (CNN) -- Alabama's chief justice, bucking his fellow state Supreme Court justices and a federal judge, will turn again to the nation's highest court in his fight to keep a monument to the Ten Commandments in the state judicial building.

"The people of this state elected me as chief justice to uphold our constitution, which established our justice system on invoking the favor and guidance of almighty God," Chief Justice Roy Moore said Thursday. "To do my duty, I must acknowledge God. That's what this case is about."

U.S. District Judge Myron Thompson had ordered Moore to remove the monument by midnight Wednesday. Moore refused.

On Thursday morning, the Alabama Supreme Court's eight associate justices overruled Moore and ordered the 5,300-pound monument removed "as soon as practicable."

"The refusal of officers of this court to obey a binding order of a federal court of competent jurisdiction would impair the authority and ability of all of the courts of this state to enforce their judgments," the eight associate justices ruled.

Later Thursday, Moore told cheering supporters he would file a formal appeal with the U.S. Supreme Court to overturn that order. The court has so far refused to block the removal.

Moore said he was "very disappointed" in colleagues who directed court administrators to have the monument removed. But the justices said Moore is legally bound to follow a lawful court order even if he disagrees with it.

Round-the-clock vigils
Moore's supporters have held round-the-clock prayer vigils outside the judicial building. As Moore prepared to speak Thursday, they sang the civil rights anthem "We Shall Overcome" on the building's steps, located a block from the church where Martin Luther King Jr. once preached.

The Rev. Pat Mahoney, leader of the pro-Moore Christian Defense Coalition, called Thursday's order an act of "judicial tyranny" and "the crushing of the First Amendment."

"We will peacefully and prayerfully kneel around this court building, risking arrest, should they try to remove this monument," he said.

But Ayesha Khan, a lawyer for Americans United for Separation of Church and State, said Moore has "loudly and vociferously" acknowledged his purpose in having the monument put in was to "proclaim the sovereignty of the Christian God."

"The Ten Commandments are a holy document. They are a sacred document," she said. "They are personal and it shows a profound disrespect for them -- and for the federal courts and for religion -- for them to become the star attraction in a three-ring circus."

Constitutional tug-of-war
Thompson has ruled the monument -- which Moore had installed in August 2001 without consulting the other justices -- to be an unconstitutional promotion of religion. The U.S. Supreme Court has so far refused Moore's requests to intervene.

But Moore said he would be violating the dictates of his conscience if he agreed to remove the monument.

"I hear others talk of a rule of law," the chief justice said. "If the rule of law means to do everything a judge tells you to do, we would still have slavery in this country. If the rule of law means to do everything a judge tells you to do, the Declaration of Independence would be a meaningless document."

Moore was a circuit judge in Etowah County, northeast of Birmingham, in the late 1990s when he fought a lawsuit seeking to remove a wooden plaque depicting the commandments from his courtroom.

The legal battle propelled him to statewide office in 2000, when the Republican jurist was elected chief justice after campaigning as the "Ten Commandments Judge." He had the 5,300-pound granite monument installed in the building housing the state appellate courts in August 2001, and a lawsuit ensued shortly afterward.

Alabama's senior associate justice, Gorman Houston, said last week the justices would take "whatever steps are necessary" to avoid Thompson's threatened $5,000-a-day contempt fine if the monument remained in place. Thursday's order followed a special conference of the eight associate justices, who unanimously ordered the monument's removal.

Alabama Attorney General Bill Pryor, a fellow Republican who has been nominated for a federal judgeship, applauded the justices' order and said it may help prevent the state from piling up a contempt fine.

"The rule of law means that no person, including the chief justice of Alabama, is above the law," Pryor said.

[lukpac]

The latest:

State readies removal of Ten Commandments monument

Asked on CNN whether he would support an Islamic monument to the Koran in the rotunda of the federal building, Moore replied, "This nation was founded upon the laws of God, not upon the Koran. That's clear in the Declaration (of Independence), so it wouldn't fit history and it wouldn't fit law."

Of course, as has been pointed out elsewhere here, the founding fathers' version of "God" is not necessarily the same as the Judeo-Christian version.

This is pretty vague, but somewhat helpful:

http://atheism.about.com/library/FAQs/c ... ov_doi.htm

More, albeit from a somewhat strange perspective:

http://www.natreformassn.org/statesman/01/jeffdec.html

[balthazar]

Asked on CNN whether he would support an Islamic monument to the Koran in the rotunda of the federal building, Moore replied, "This nation was founded upon the laws of God, not upon the Koran. That's clear in the Declaration (of Independence), so it wouldn't fit history and it wouldn't fit law."

He obviously doesn't realize that he's just shown how much of a bigot he is.

Of course, as has been pointed out elsewhere here, the founding fathers' version of "God" is not necessarily the same as the Judeo-Christian version.

Try to explain that to him and he'll probably slap you with a Bible.

[Rspaight]

Man, this guy becomes a bigger kook every time he's quoted. The sad thing is that people are eating it up. The poll is now 55-45 in favor of the monument.

Which makes this an appropriate time to remember that the Bill of Rights was expressly created to protect the rights of the minority from the whims of the majority. Put another way, the Bill of Rights was created specifically to rein in morons like Moore.

"The issue is: can the state acknowledge God?" he said. If this state can't acknowledge God then other states can't. ... And eventually, the United States of America ... will not be able to acknowledge the very source of our rights and liberties and the very source of our law. ...

"When a court order departs from the law and tells you what you can think and who you can believe in," he said, the judge issuing that order is "telling you to violate your oath. And he can't do that. Judges simply don't have that power."

He's just babbling incoherently at this point. None of the above makes any sense at all.

Ryan

[lukpac]

While not really addressing the topic at hand, I found this, which I found both amusing and frightening at the same time:

The Conservatism of the Declaration of Independence

The Claremont Institute seeks to restore the principles of the American founding to their former position of preeminence in American public life. Surprisingly, some conservatives have doubts about that project.

The Declaration of Independence states the founding principles in this way:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness. That to secure these rights governments are instituted among men, deriving their just powers from the consent of the governed.

In many conservatives today these words arouse contradictory feelings. On the one hand they admire the Founding Fathers and therefore respect the Declaration. On the other hand, they fear that the problem in America today is that we have too much equality, too many rights, and too much democracy. Liberals, after all, are always talking about how much they care about the rights of women and the poor, how we need more equality, how we must take power out of the elites and put it into the hands of the oppressed.

We at the Claremont Institute do not share the conservative ambivalence about the principles of the Declaration. We believe that liberty and equality and rights are entirely good, as those terms were understood by our Founders. A people that is a "good people" (as we called ourselves in the Declaration) cannot have too much of these good things. The problem today is not that we have too much equality, too much liberty, too many rights. The problem is that we are well along in a process of abandoning equality properly understood, and liberty and rights properly understood.

I will explain this from three points of view.

First, our liberties are contracting, not expanding. Anyone in the business world knows this is true of property rights. What is not as well known is that free speech, freedom of religion, and many other freedoms have also been substantially reduced in the twentieth century, especially in the past twenty-five years.

Second, our liberties are also contracting in the area of government by consent — by elected officials accountable to the people. Our country is governed less democratically now than it was in 1965.

Third, our liberties are also contracting because for several decades government has been in the business of undermining the conditions of freedom — namely, morality, family, and faith.

Let me give examples to explain in each case how this decline of democracy, equality, and rights is taking place.

Consider free speech. Conservatives today sometimes complain that we have an excess of free speech. But let us focus on the one area that the Founders regarded as the most important purpose of free speech: enabling the public to make an informed decision about candidates for election. In 1971, for the first time in American history, government began to take this right away from a large class of Americans — those who cooperate or consult with candidates for public office. Such people are permitted to spend no more than $1,000 explaining to the public why their friends deserve to be elected. This campaign finance act was passed in order to limit the influence of people with money in elections. The idea behind this law was that since poor people can't afford to publish their views, the wealthy should be severely limited in what they can publish.

What would the Founders have thought of a law punishing people for publishing their views on an election contest? This is what the Revolution was all about: government would not be permitted to say who would be permitted to publish and who forbidden. That had been the law in Old England. Such laws violate the right to liberty, and they are anti-democratic. John Adams wrote, "If the press is to be stopped and the people kept in ignorance, we had much better have the first magistrate and senators hereditary."

The result of campaign finance laws is to "stop the press" — to cut down on public information about candidates who are not favored by the established media, the major networks and the leading daily newspapers. What candidates lose out under our campaign finance laws? Those who challenge the status quo, who oppose big government — in many cases, conservatives.

Second example. America doesn't have too much democracy, as many conservatives believe. It has too little. Government by the people has in a significant degree been replaced over the past century, especially in the past thirty years, with government by so-called experts far removed from responsibility to the electorate. Democracy is not gone, but it is much further eroded than most people are aware.

This has happened in two ways. One, power has been taken out of the hands of private citizens and local communities, and shifted to more centralized and more remote bodies, such as state and national governments. Two, within these governments, power has been increasingly shifted away from elected officials (president, governor, legislatures) to unelected officials (bureaucracies, agencies, and courts).

One example. How did we get wetlands regulation? As it happens, government got the authority to regulate wetlands without passing any law on the subject. The relevant portion of the Clean Water Act simply requires permits "for the discharge of dredged or fill materials into the navigable waters" of the U. S. Obviously, a swamp, a pothole, or a bog is not "navigable." Yet federal agencies, working in tandem with federal courts, have claimed, with a straight face, that "navigable waters" include all the "wetlands" in the U. S. This now includes, according to one set of federal regulations, land that has standing water on it for as little as 14 days a year, and land that accidentally becomes soaked by irrigation runoff or from undersized or clogged culverts.

This wetlands example illustrates how policy is often formed by officials — courts and agencies — far removed from the people. This policy process defies not only the Founders' principle of private and local control, but also the Constitution's requirement that we be governed only by laws to which our elected representatives give their consent. It also illustrates the government's contempt for the property rights of owners, who in some cases have been imprisoned for cleaning up, or building on, land they own.

So much for our rights, and government by consent.

Let us turn now to our third theme, the government's assault on the conditions of freedom — religion, family, and morality.

The Founders believed that although freedom is every man and woman's birthright, a self-governing community that secures freedom is rare. The Founders were the heirs of two thousand years of European history in which there was little or no protection of individuals rights, and little or no government by the consent of the governed.

In order for men to be able to govern themselves and not abuse their freedom, they need to have the habits and convictions that enable them to behave responsibly. Madison once wrote, with his typical tough-mindedness, that if men do not have sufficient self-restraint, "Nothing less than the chains of despotism can keep them from destroying and devouring one another." But where do these moral virtues of moderation and justice come from? The Founders' answer: from knowledge of the rights of mankind, but above all from religion, which teaches us to restrain our passions and to respect the rights of others. Thomas Jefferson — the Founder most outspoken in his doubts about traditional Christianity — was sensible enough to write in his Notes on Virginia that the liberties of a people will no longer be secure if they cease believing that their liberty is the gift of God.

Today's government is in a whole host of ways anti-religious. When the Supreme Court discusses religion, it uses words like "coercive," "divisive," "danger," and "irrational." In the name of the Bill of Rights, the Court has banned religion from public schools. Yet the same Congress that passed the Bill of Rights in 1789 also passed a law encouraging the teaching of religion in public schools in the Northwest Territories — the future states of Ohio, Indiana, Illinois, Michigan, and Wisconsin.

Government's ban on God is particularly striking in light of this fact: the Declaration of Independence says liberty is our inalienable right only because we are "endowed" with that right by our Creator ("created equal"). Our principles (religious liberty) supposedly require us never to breathe a word to school children about where those principles come from. But if we refuse to acknowledge that foundation of our principles in "the laws of nature and of nature's God," what do our principles rest on? If liberty is not the gift of God, it must be the gift of government. But what government gives, government may take away. As Jefferson said: without God, liberty will not last.

On the same topic of government hostility to morality and religion, consider the family. Today, even liberals see that family breakdown is a problem. It is the direct or indirect cause of the vast majority of violent crime, child abuse, battering and exploitation of women, and much more.

When government changed its policy on welfare in the 1960s, it in effect began to subsidize divorce and single motherhood. Government's generosity made it possible, for the time in American history, for large numbers of irresponsible women to get no-fault food, housing, cash, medical care, job training, higher education, and more. The new welfare policies made many males among the working poor a bad bargain for quite a few women who would have married them — and stayed married to them — before the 1960s.

At the same time that government has undermined the family by its perverse economic incentives, it has promoted the separation of sex from love and marriage. From sex education to legalized abortion, from pregnant unmarried cheerleaders to homosexual rights, from no-fault divorce to free condoms — government sends young men and women the same message: just do it! Sex exists for your personal fun and pleasure. Don't worry about the consequences — if the fetus is inconvenient, kill it; if you would rather bring it to term, we'll pay you to raise it.

Forgotten is the older view: that sex is part of the plan of God and nature for your life; that its noblest use is for the generation of children who will grow up under the daily harmonious guidance of a loving mother and father; that it is a fine thing to send children out into the world, so that they too can have the opportunity to engage in the pursuit of happiness and to polish and perfect their souls, just as the best of their forebears have done from time immemorial.

America's freedoms have eroded, her families are disintegrating, and her women and children are subjected to levels of rape, exploitation, neglect, and abuse that America's Founders would never have tolerated. We can trace these problems to the abandonment of the principles of the Declaration of Independence by our elites, and increasingly by the people themselves.

The Claremont Institute is devoted to the recovery of this healthy core of the older American tradition. Let us put our shoulders to the wheel, each of us doing what he can in the common enterprise of restoring "one nation, under God, with liberty and justice for all."

[balthazar]

Which makes this an appropriate time to remember that the Bill of Rights was expressly created to protect the rights of the minority from the whims of the majority. Put another way, the Bill of Rights was created specifically to rein in morons like Moore.

I'm glad to see someone who actually understands the purpose of the Bill of Rights. I'd kiss you for it, but Pat Robertson would certainly want to stone me in front of Roy Moore's monument, while the Claremont Institute cheers him on.

[Rspaight]

Oooh, it's like venturing into the heart of darkness. Thanks for sharing.

The biggest hoot I got out of the whole thing is that this rambling piece of half-assed pontification is filed under "Essays, Speeches, and Other Scholarly Works." Scholarly? To me that means well-cited research. I see no citations or other evidence of any scholarly work. Just an intellectually sloppy effort to turn a document that has no legal standing whatsoever into an excuse to bash gays, campaign finance reform, and environmental protection.

Ryan

[lukpac]

This just in: the federal government can't establish religion, but states sure can!

On the establishment of religion: What the Constitution really says

Tuesday, August 26, 2003

On the establishment of religion: What the Constitution really says

Posted: August 26, 2003
1:00 a.m. Eastern

By Alan Keyes
© 2003 WorldNetDaily.com


When he ordered the removal of the Ten Commandments monument from the Supreme Court building in Alabama, federal judge Myron Thompson stated that the issue at stake involved the question of whether or not the state has the right to acknowledge God.

Actually, this formulation is a distraction from the real issue, which is whether or not Myron Thompson or any other federal judge has the right to interfere with state actions that may or may not constitute an establishment of religion.

Someone who simply reads the text of the Constitution of the United States would be thoroughly surprised to learn that a federal judge claimed the right to act in this manner. The First Amendment to the Constitution plainly states: "Congress shall make no law respecting an establishment of religion ..." Since there can be no federal law on the subject, there appears to be no lawful basis for any element of the federal government – including the courts – to act in this area.

Moreover, the 10th Amendment to the Constitution plainly states that "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." This means that the power to make laws respecting an establishment of religion, having been explicitly withheld from the United States, is reserved to the states or to the people.

Taken together, therefore, the First and 10th Amendments reserve the power to address issues of religious establishment to the different states and their people.

An erroneous premise

Now, Judge Thompson – like many federal judges and justices before him – claims the unlimited prerogative of dictating to the states what they may or may not do with respect to matters of religious expression. Applying this supposed prerogative, he has declared the erection of the Ten Commandments monument by the chief justice of the Supreme Court of the state of Alabama to be an unlawful establishment of religion.

This he has done despite the clear impossibility of any basis for his action in federal law or statute. He relies on the erroneous doctrine, repeatedly affirmed by the Supreme Court of the United States, that the First Amendment forbids an establishment of religion, and that the 14th Amendment applies this prohibition to the states. Based on this assertion, he and other federal judges and justices now claim an unlimited right to dictate to the states in these matters.

We have already seen that the actual language of the Constitution does not forbid an establishment of religion. Rather, it forbids Congress to legislate on the subject at all, reserving it entirely to the states. No language in the 14th Amendment deals with this power of government.

Portions of that amendment do indeed restrict the legislative powers of the states, but they refer only to actions that affect the privileges, immunities, legal rights and equal legal status of individual citizens and persons. The first clause of the First Amendment in no way deals with persons, however, but rather – in concert with the 10th Amendment – secures the right of the states and the people to be free from the dictates of federal law respecting an establishment of religion.

Distinguishing rights of the people from individual rights

A right of the people as a whole – not an individual right – is the protected object of the first clause of the First Amendment to the Constitution. Even if one accepts the doctrine that the Bill of Rights must be taken as the basis for understanding the privileges and immunities of citizenship, the first clause of the First Amendment simply secures this right of the people, giving clear constitutional effect to their immunity from federal dictation in matters of religion.

The practical foundation of all the rights and privileges of the individual citizen is the rights that inhere in the citizen body as a whole, the rights of the people and of the state governments. The latter effectively embody their ability to resist abuses of national power. Such rights include the right to elect representatives, and to be governed by laws made and enforced through them. (The right to vote is an individual right. The right to elect is a right of the people as a whole.) Without these corporate and collective rights, there would be no mechanisms for the concerted action of the people, no institutions for their united defense and, therefore, no materially effective security for their individual persons, property and rights against the organized forces of an abusive national power.

The establishment clause of the First Amendment secures a right of the people. Until now, though, many have treated the first two clauses of the amendment as if they are one ("Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ..."). This practice ignores both the linguistic and the logical contrast between the two clauses. Where the first clause deals with a right of the people (that is, a power of government reserved to the states and to the people), the second clause deals with an action or set of actions (the free exercise of religion) that cannot be free unless they originate in individual choice. The first clause forbids Congress to address a subject at all. The second allows for federal action, but restricts the character of such action.

By virtue of the first clause, the states and the people as such are protected from federal domination; by the second, individuals are protected from coercion in their religious conduct. The first clause allows the states and the people as such to follow their will in matters of religion; the second guarantees the same liberty to individuals and the corporate persons they voluntarily compose. The first has as its object matters that are decided by the will of the people (i.e., by the will of the constitutionally determined majority in the different states). The second involves matters decided by the will of each individual.

Parallel rights and actions

The failure to observe this distinction leads to the absurd presumption that all government action in matters of religion is somehow inherently a contravention of individual freedom. This can be no more or less true in matters of religion than it is in any other area in which both individuals and governments are capable of action and decision.

The government's power to arm soldiers for the community's defense does not inherently contravene the individual's right to arm himself against personal attack. The government's power to establish institutions of higher learning does not inherently contradict the individual's right to educate his young or join with others to start a school. The government's power to engage in economic enterprises (such as the postal service or electric power generation) does not inherently contradict the individual's right to private enterprise. It is possible for government coercively to inhibit or repress any of these individual activities, but it is obvious that government action does not in and of itself constitute such coercion.

As the U.S. Constitution is written, matters of religion fall into this category of parallel individual and governmental possibilities. Federal and state governments, in matters of religion, are forbidden to coerce or prohibit individual choice and action. Within the states, the people are free to decide by constitutional majority the nature and extent of the state's expression of religious belief.

This leaves individuals free to make their own choices with respect to religion, but it also secures the right of the people of the states to live under a government that reflects their religious inclination. As in all matters subject to the decision of the people, the choice of the people is not the choice of all, but of the majority, as constitutionally determined, in conformity with the principles of republican government (which the U.S. Constitution requires the people of each state to respect).

Subverting the wisdom of the Founders

The Constitution reflects the view that the choice with respect to governmental expressions of religious belief must respect the will of the majority. Unless, in matters that should be determined by the people, the will of the majority be consulted, there is no consent and therefore no legitimacy, in government.

Though it may be argued that matters of religion ought to be left entirely to individuals for decision, this has the effect of establishing in the public realm a regime of indifference to religion. Thus, a choice of establishment is inevitable, and the only question is whether the choice will be made by the will of the people or not. The U.S. Constitution, being wholly republican, decides this question in favor of the people, but in light of the pluralism of religious opinions among the people, forbids any attempt to discern the will of the people in the nation as a whole.

By leaving the decision to the people in their states, and by permitting a complete freedom of movement and migration among the states, the U.S. Constitution offers scope for the geographic expression of this pluralism while assuring that the absence of a formal and legal expression of religious reverence on a national scale does not inadvertently result in the establishment of a national regime of indifference to religion.

When, by their careless and contradictory abuse of the 14th Amendment, the federal judges and justices arrogate to themselves the power which, by the First and 10th Amendments, the Constitution reserves to the states, they deprive the nation of this prudent and logically balanced approach to the issue of religious establishment.

Whether through carelessness or an artful effort to deceive, they ignore the distinction between the individual right to free exercise of religion and the right of the people to decide their government's religious stance. They have, in consequence, usurped this right of the people, substituting for the republican approach adopted by the Constitution an oligarchic approach that reserves to a handful of un-elected individuals the power to impose on the entire nation a uniform stance on religion at every level of government.

The right to decide the issue of establishment is a fundamental right of the people. It is also among the most likely to cause bitter and passionate dissension when the religious conscience of the people is violated or suppressed. That may explain why it is the very first right secured from federal violation in the Bill of Rights.

When they take this right from the people, the federal judges and justices depart from the republican form of government. They impose, in religious matters, an oligarchic regime upon the states. They therefore violate, in letter and spirit, Article IV, Section 4 of the U.S. Constitution. This section declares that "The United States shall guarantee to every State in this Union a republican form of government ..."

Unlawful usurpation and lawful resistance

In addition to these abuses and violations of the U.S. Constitution, the purblind insistence by these judges and justices on treating religious freedom as a strictly individual right has produced the very consequence that the Constitution's more prudent approach seeks to avoid. They have insisted that government adopt a stance of strict agnosticism, which in effect drives from the public realm all things that smack of religious belief.

This establishes, in the literal sense, a uniform regime of atheism in government affairs. (In the literal sense, atheism simply means the absence of God, and this, in the public realm, is what the federal judges and justices insist upon.) Since, however unjustifiably, they claim for their opinions the force of law, it necessarily follows that they mean to impose this regime by force – that is, by coercion. Thus, in the guise of a judicial effort to protect religious freedom, they destroy it – not for this or that individual, but for the people as a whole.

Naturally, this destruction has aroused anxiety and opposition among the people, who feel and fear the effects of this wholesale suppression of public religious conscience and belief. With each new manifestation of the nature and intent of the federal judiciary's usurpation of their right, the people grow more resistant. Their acts of resistance against this judicial despotism reach higher and more organized levels until they are undertaken in and through the institutions of the state governments.

The state governments are the natural focus and vehicle through which the people organize and declare their opposition to unconstitutional assertions of federal power. Because the federal judiciary cloaks its usurpation in the usual forms and procedures of law, and because Americans are accustomed to taking those forms as evidence of substantive conformity with the law, these manifestations of resistance may be denounced as unlawful.

But in this case, the lack of lawful grounds for the federal judiciary's acts must, in the end, repel these denunciations. The federal judges and justices cannot be acting lawfully when their only claim of lawfulness rests upon the Constitution – since the Constitution's sole pronouncement on the matter of an establishment of religion precludes the possibility of any federal law as a basis for their jurisdiction.

Some may insist that regardless of anyone's opinion of the lawfulness of a court's action, all are duty-bound, in the interest of order and law enforcement, to obey every court order. This is certainly true of ordinary citizens in most circumstances. Even where ordinary citizens are concerned, however, it is not hard to imagine situations in which they would be morally obliged to refuse a plainly unlawful court order. If, for instance, a judge issues an order requiring that at random an innocent person be shot when entering the courtroom, no person, including any officers of the court, is required to obey this order. In fact, like military personnel, they are duty-bound to refuse.

What is imaginable for ordinary citizens is even more conceivable when dealing with high government officials who are sworn to uphold the constitutions and laws that establish self-government in the states, and that protect the liberties of individuals and of the people. If a federal judge orders the governor of a state to take actions that he conscientiously believes violate the rights of an individual or group of individuals, no one would deny that he is duty-bound to refuse such an order.

If, for example, a Nazi regime somehow came to power at the federal level, and by legislation or executive order initiated an effort to confine Jewish or black Americans to concentration camps, all state officials acting under state constitutions that protected individual rights would be oath-bound to refuse unlawful federal court orders that declared people to be of Jewish or black heritage and thereupon ordered their confinement.

What we clearly acknowledge to be possible and even morally obligatory in case of the violation of individual rights must be even more compelling when the case involves the violation of the rights of the whole people. Thus, when a federal judge issues an unlawful order that a state official conscientiously believes violates a fundamental and constitutionally protected right of the people of his state, that official must refuse the order that assaults their right just as he would refuse an order that violated the rights of individuals. It is of no consequence whether the unlawful order comes from one judge or many, from a lower court or the Supreme Court – it must be refused.

Note that the wording here implies an obligation, not a choice. This is important – since it makes clear that the court's unlawful order places the state official in a situation where his substantive duty to the law conflicts with his formal obligation to obey a court order. A regime in which slavish observance of the empty forms of law substitutes for substantive respect for the real terms and requirements of the law clearly represents the demise of law as such.

Judge Moore and the people of Alabama

In the state of Alabama, Judge Roy Moore has refused the unlawful order of Judge Myron Thompson, since it represents a destructive violation of the right of the people of Alabama to decide how their government will or will not express their religious beliefs. This right of the people is the first one secured in the U.S. Constitution's Bill of Rights, and it cannot be compromised without surrendering the moral foundations of republican liberty. Judge Thompson's assault upon this right, and that of the entire federal judiciary for the last several decades, is not, therefore, a trivial threat to the liberty of the people. Judge Moore cannot obey the court's order without surrendering that liberty.

Now, the 14th Amendment to the U.S. Constitution, as it applies the Bill of Rights to the states, lays an obligation upon state legislatures, officers and officials to refrain from actions that deprive the people of their rights. With respect to the First Amendment, therefore, it becomes their positive obligation to resist federal encroachments that take away the right of the people to decide how their state governments deal with matters of religion. This obviously has a direct bearing on the case of Chief Justice Roy Moore in his confrontation with the abusive order of Judge Myron Thompson.

His refusal of the order is not only consistent with his duty to the Alabama Constitution, it is his duty under the Constitution of the United States. Alabama Attorney General Bill Pryor, the eight associate justices of the Alabama Supreme Court, and indeed any other state officials in Alabama who submit to the judge's order are, by contrast, in violation of the federal Constitution, as well as their duty to the constitution and people of Alabama.

As a class, therefore, the citizens of Alabama are justified in bringing suit against them for their dereliction, and in seeking reparation for the damage that has been done to their right under the U.S. Constitution. Unfortunately, since the federal judiciary is the perpetrator of the assault against this right, how can the people of Alabama hope for a fair and unbiased judgment from any of the federal courts, including the Supreme Court?

Judicial self-interest

Lawyers will doubtless object on the grounds that the Supreme Court has repeatedly affirmed the jurisdiction of the federal courts in this regard. Their partisan reverence for the Supreme Court's opinions on this matter is wholly understandable, since a seat upon the court, or upon the bench of one of the inferior federal courts, usually represents the highest point toward which their ambition aspires. It is quite natural that they should support claims to a power that they may hope someday to wield.

However, lawyers' insistence that others show the same reverence is repugnant to reason and common sense. In the matter of their constitutional jurisdiction, as against the state courts or the other branches of the federal government, the federal courts – including the Supreme Court – have a strong and direct interest. If judgment in these matters is left to them absolutely, it must always lead to a situation in which the judges and justices sit in judgment of their own cause.

Our common sense joins the admonitions of the Founders of our republic in warning us not to rely on such intrinsically biased judgments. The prospect of expanding their power may distract the federal judges from the facts and merits of the case. This is, and ever has been, a weakness of our humanity.

The people and their representatives

This is why the U.S. Constitution, after enumerating certain cases over which the federal judiciary would have original jurisdiction, gave it appellate jurisdiction "with such Exceptions, and under such Regulations as the Congress shall make." Therefore, the federal courts are not the ultimate judges of the boundaries of their own power. Final responsibility in this respect rests with the Congress.

Once we take note of this fact, it also becomes clear that thinking about matters of jurisdiction at the constitutional level cannot be considered the exclusive province of lawyers and judges. Though Congress has in some historical periods been composed of a plurality, or even a majority of lawyers, lawyers could never have an exclusionary claim to membership in its ranks. The people can send to Congress whom they choose, including people from walks of life in no way related to the legal profession. It follows, therefore, that the Constitution assumes that people who are not lawyers will have to reason and make judgments about the proper scope and limits to be imposed upon the appellate jurisdiction of the federal courts.

The fact that the Supreme Court affirms the federal judiciary's claim to jurisdiction over the state governments in matters pertaining to an establishment of religion does not, therefore, settle the issue. The Congress must review and oversee such a claim. Since the people choose the members of Congress, people at large, as they consider their election, are required to consider this claim as well.

Our analysis thus far demonstrates that the Supreme Court's affirmation of this claim of jurisdiction is contrary to the plain text of the Constitution: It usurps the right of the people in their respective states to decide their government's stance on religion; it violates Article IV, Section 4 of the Constitution by subverting the republican form of government with respect to this right; and by aiming coercively to establish an agnostic regime of atheism at all levels of government, it destroys religious freedom for the people as a whole and dangerously subverts the Constitution's prudent handling of matters pertaining to religion.

The right and duty of Congress

The text of the Constitution easily allows us to see and understand the federal judiciary's abuse of power and its usurpation of the right of the people in religious matters. It also provides a remedy for this abuse. The Congress must pass legislation that, in order to assure proper respect for the first clause of the First Amendment, excepts from the appellate jurisdiction of the federal courts those matters which, by the conjoint effect of the First and 10th Amendments, the Constitution reserves to the states respectively and to the people. (This language avoids a semantic difficulty, since congressional legislation that explicitly mentioned matters pertaining to an establishment of religion would serve the intention but violate the terms of the first clause of the First Amendment.)

This legislation would restore observance of the Constitution by preventing the federal courts from addressing any issues related to religious establishment (as the First Amendment requires), while leaving them free to deal with cases involving the free exercise of religion by individuals, since these do not fall under constitutional ban on federal legislation. In this regard, the only state actions that come under federal jurisdiction are those involving coercive interference with individual choice in matters of religion. State action that involves no such individual coercion (such as the placement of a Ten Commandments monument in the rotunda of a state Supreme Court building) is outside the purview of the federal courts.

The consequences of congressional failure to act urgently upon this matter are almost too grave for contemplation. State officials will be continually beset by federal court judgments that demand action the U.S. Constitution forbids. Errors of judgment by federal officials seeking to enforce such orders might lead to confrontations between federal officers determined to do what federal judges order and state officers determined to do what the U.S. Constitution requires.

On one side and the other, claims of lawful justification would contribute to intransigence. Problems like this, left for very long without solution, raise the sombre spectre of national dissolution. This, the Congress has the constitutional means and duty to avoid. They should move to do so without delay.

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Be sure to sign up for Joseph Farah's free e-mail list solely designed as an organizing tool of his bid to impeach the Supreme Court majority.

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Moore [url=http://www.shopnetdaily.com/store/item.asp?ITEM_ID=1279wrote a treatise on his battle to retain the monument in the July issue of Whistleblower magazine[/url], WND's monthly print publication.


In the August issue, entitled "LAW-LESS: Why many Americans fear attorneys and judges more than terrorists," Roy Moore is the subject of an in-depth profile. Subscribe to Whistleblower magazine.
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Be sure to visit Alan Keyes' communications center for founding principles, The Declaration Foundation.

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Former Reagan administration official [url=mailto:orders@declaration.net]Alan Keyes[/url], was U.S. ambassador to the United Nations Social and Economic Council and 2000 Republican presidential candidate.

[Rspaight]

That's about what I would expect from the jokers at WorldNetDaily.

Gotta give Keyes credit for that novel interpretation of the first amendment. I suppose that also means that since the amendment also specifies that "Congress shall make no law... abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances," we can assume that those are also areas where the states are free to legislate, and that, say, Oregon (where WND is located) is completely free to enact legislation banning WND for fomenting seditious thought against the government.

Ryan