Commandment From The Court

Alabama Chief Justice Roy Moore's Decalogue Display Violates Constitution, Says Federal Appellate Panel, As Dispute Moves Toward Showdown

The past few months haven't been easy ones for Melinda Maddox.

In the fall of 2001, Maddox, an Alabama attorney, joined an Americans United-sponsored lawsuit challenging Chief Justice Roy Moore's display of the Ten Commandments in the Judicial Building in Montgomery. Some people in her hometown of Brewton didn't take well to that.

"You've heard people say Judge Moore is the most popular man in Aladbama," Maddox said. "Well, I am the least popular woman in Alabama. I've had people call me and say I should be shot, that I should go to hell. I've had windows in my house broken. I've had my car keyed. I'm the closest thing to the devil in south Alabama right now, and the funny thing is, this was never supposed to be about religion."

Things got so bad that Maddox had to close her law office in Brewton when clients dried up. She has since joined WildLaw, a Montgomery-based legal firm that works on environmental and conservation issues.

The harassment and economic retaliation have been difficult, but Maddox's belief that Moore had flouted the Constitution was vindicated July 1 when a federal appeals court ruled that the monument violates church-state separation. A few days later, a federal judge gave Moore 15 days to get the two-ton granite sculpture out of the courthouse.

Maddox said she was gratified when word of the decision reached her.

"This is not about what I believe or Moore believes," she told Church & State. "This is about the Constitution. It's not a personal thing. He could take the monument and put it in his front yard or his office. He needs to get it out of the courthouse."

But indications are that Moore won't allow his massive granite monument to go without a fuss. Following standard procedure, the 11th U.S. Circuit Court of Appeals sent the case back to U.S. District Court Judge Myron H. Thompdson to enforce. On Aug. 5, Thompson issued an order requiring Moore to remove the Commandments display by Aug. 20.

Moore's attorneys had earlier told Thompson in a legal document that he had no authority to order the monument out of the courthouse. When the order came down, Moore spokesman Tom Parker continued to be recalcitrant, calling it "judicial tyranny."

Religious Right groups have rallied to Moore's side, promising to engage in civil disobedience. The Rev. Rob Schenck, head of a small, Washington-based group called the National Clergy Council, promised to bring busloads of people to Montgomery to defend Moore's display.

Schenck and a partner, the Rev. Patrick Mahoney veterans of aggressive anti-abortion protests and known for their opposition to church-state separation hope to draw thousands to Montgomery to crowd around the monument, making it difficult to get the large sculpture out of the building.

"My sense is a line in the sand needs to be drawn in Montgomery, Ala.," Mahoney told the Associated Press in July.

The July appeals court ruling came as something of a surprise not because of what it said but because of how quickly the court handed it down. On June 4, Americans United Legal Director Ayesha N. Khan argued before the 11th Circuit that Chief Justice Moore violated the First Amendment when he placed the 5,280-pound Commandments monument in the lobby of the Judicial Building.

Americans United, which litigated the case against Moore along with the American Civil Liberties Union of Alabama and the Southern Poverty Law Center, expected a ruling in the fall.

The three-judge panel apparently saw the Glassroth v. Moore caseas a legal no-brainer and quickly issued a unanimous decision saying the religious display must go.

In clear, unequivocal language, Circuit Judge Ed Carnes explained exactly why Moore was wrong. Carnes noted that Moore's attorneys conceded that the chief justice believes he has the right to display any religious symbol he wants in the courtroom. This notion, Carnes said, simply does not square with the separation of church and state.

"[I]f we adopted his position, the Chief Justice would be free to adorn the walls of the Alabama Supreme Court's courtroom with sectarian religious murals and have decidedly religious quotations painted above the bench," declared Carnes. "Every government building could be topped with a cross, or a menorah, or a statue of Buddha, depending upon the views of the officials with authority over the premises. A cr\xe8che could occupy the place of honor in the lobby or rotunda of every municipal, county, state and federal building. Proselytizing religious messages could be played over the public address system in every government building at the whim of the official in charge of the premises."

Concluded Carnes, "However appealing those prospects may be to some, the position Chief Justice Moore takes is foreclosed by Supreme Court precedent."

Judge Thompson warned Moore that failure to comply would result in a finding of contempt of court.

Moore, the appeals court made clear, had dug his own legal grave by constantly talking about his religious purpose.

"[H]aving examined the record ourselves, we agree with the district court that it is 'self-evident' that Chief Justice Moore's purpose in displaying the monument was non-secular," observed the court. "Given all of the evidence, including the Chief Justice's own words, we cannot see how a court could reach any other conclusion."

An angry Moore vowed to appeal. At a press conference the day after the decision, he blasted the appeals court.

"Federal courts are simply wrong to conclude that we cannot recognize the sovereignty of God," Moore said. "When the courts of our land deny the existence of God and pretend to give us rights, they deny the very moral foundation of our law and our government."

Moore's attorneys argued in court that the Ten Commandments have some sort of connection to U.S. law and thus can be displayed by government. That assertion was challenged by a group of legal historians, led by Willamette University School of Law professor (and former AU Legal Director) Steven K. Green, who filed a friend-of-the-court brief asserting that U.S. law evolved from a variety of sources, none of which was overtly religious.

The appeals court apparently found the legal historians' argument persuasive, noting that "Chief Justice Moore has pointed to no evidence that the Ten Commanddments in any form were publicly displayed in any state or federal courthouse, much less that the practice of displaying them was widespread at the time the Bill of Rights was proposed and adopted."

Moore had secretly commissioned an artist to make the washing-machine-sized monument. The installation was taped by Florida-based television evangelist D. James Kennedy's Coral Ridge Ministries, which later offered copies of the video for sale to fund Moore's legal defense.

Moore did not consult with his fellow justices before hand, and arrogantly told the press, "I'm the highest legal authority in the state, and I wanted it there."

Litigation was inevitable. On Oct. 30, 2001, Americans United joined forces with the ACLU of Alabama to file a lawsuit on behalf of local residents who do business at the courthouse and objected to the religious display. At the same time, the Southern Poverty Law Center, which is based in Montgomery, filed its own lawsuit against Moore's monument. The U.S. District Court consolidated the two cases, and the three groups began working together.

Few people were surprised when Moore installed the monument. He was elected thanks to notoriety gained in a legal battle with the ACLU over a Commandments display he placed in his local courtroom. He used the controversy to launch a bid for chief justice of the Alabama Supreme Court. Moore, running as the "Ten Commandments judge," promised he would bring the Decalogue to the Judicial Building if elected. He won the position in November of 2000.

Religious Right groups were quick to rally around Moore after he brought the monument into the courthouse. Teledvangelist Kennedy raised thousands of dollars to defend Moore, and Herb Titus, a former dean at TV preacher Pat Robertson's Regent University Law School, took up Moore's case.

Alabama Attorney General Bill Pryor appointed Titus and two other lawyers as deputy attorneys general to represent Moore in the dispute.

But it was all for naught. A federal court ruled against Moore on Nov. 18, 2002, and now the appeals court has affirmed that decision.

Moore could have asked the entire 11th Circuit panel to hear his appeal, but he decided instead to go directly to the U.S. Supreme Court. In a brief statement issued July 22, Moore said "federal courts have no authority to forbid the acknowledgement of God under the First Amendment to the United States Constidtudtion or to prohibit the recognition of God in the Constitution of Alabama."

Continued Moore, "I will not delay by seeking further hearings before the 11th Circuit Court of Appeals. I will personally petition the United States Supreme Court as Chief Justice of this State to hear me on this matter."

Chances are, however, that the high court will turn a deaf ear to Moore's plea. Several Commandments cases have been appealed to the Supreme Court within the past few years. The justices have turned down every one.

Thompson seems to be in no mood for games. In the order, he warned Moore that failure to comply would result in a finding of contempt of court, noting that "the court could levy substantial fines against Chief Justice Moore in his official capacity and, thus, against the State of Alabama itself, until the monument is removed.

Such fines, Thompson wrote, could start at $5,000 per day for the first week "with the amount of the fine perhaps to double at the beginning of each and every week thereafter...until there is full compliance with the order the court enters today."

But Religious Right groups have vowed to defy the order and engage in civil disobedience to keep the monument in place. During a July 16 news conference, Schenck and Mahoney promised to mobilize fundamentalist Christians from churches all over America to converge on Montgomery if the monument is ordered removed.

Another Religious Right minister, the Rev. Rick Scarborough, a prot\xe9g\xe9 of Jerry Falwell, called a pro-Moore rally for Aug. 16.

The resistance effort got a boost July 25 when the House of Representatives voted 260-161 to block the federal government from spending any money to enforce the 11th Circuit's order. (See "Moore Grandstanding," page 7.)

Moore has never stated upfront that he would defy a federal court order requiring removal of the Commanddments. But he and his attorneys have strongly hinted that they might.

These comments sparked an unusually strong backlash from the 11th Circuit.

Judge Carnes, an appointee of the first President George Bush and considered one of the most conservative judges on the 11th Circuit, observed, "In the regime [Moore] champions, each high government official can decide whether the Constitution requires or permits a federal court order and can act accordingly. That, of course, is the same position taken by those southern governors who attempted to defy federal court orders during an earlier era."

Continued Carnes, "The rule of law does require that every person obey judicial orders when all available means of appealing them have been exhausted. The chief justice of a state supreme court, of all people, should be expected to abide by that principle. We do expect that if he is unable to have the district court's order overturned through the usual appellate processes, when the time comes Chief Justice Moore will obey that order. If necessary, the court order will be enforced. The rule of law will prevail."

AU Legal Director Khan hailed the ruling as an important reaffirmation of the need for secular government.

"This is a clear message from the courts: Thou shalt not merge church and state," said Khan. "Justice Moore is fighting a losing battle, and it's time for him to stop wasting Alabama taxpayers' money on this case."

Despite the appeals court's clear warning, Moore's supporters seem determined to force a showdown. Moore himself told Alabama Public Television July 16 that he will not decide what to do about the monument until his final appeal is exhausted. He also denied having any contact with groups that plan to protest but did say any demonstrations that take place must be peaceful. (The situation remained in flux as this issue of Church & State went to press. Look for updates in future issues.)

There are signs that at least some Alabama residents are getting weary of Moore's antics. The Birmingham News urged Moore to abide by the law in a July 24 editorial.

"For Alabama's sake, let's hope the [Supreme] court ends the suspense quickly and issues a definitive order and that Moore will judiciously accept it," stated the paper.

Meanwhile, others in Alabama are getting worried about footing the mounting legal bill for Moore's religious crusade. A recent poll by the Mobile Register and the University of South Alabama found that most Alabamians 77 percent approve of the monument, but fewer than 40 percent said taxpayer money should be spent to defend it. It has been estimated that the state, which is already facing a huge budget deficit, may have to spend as much as $1 million on the case when all is said and done.