Monday, July 7, 2003

The chief justice of the Alabama Supreme Court, Roy S. Moore, has forgotten that Robert E. Lee surrendered to U.S. Grant at Appomattox Court House, not vice versa. Admired by some political conservatives, Justice Moore denies the constitutional authority of federal courts to issue rulings interpreting the establishment clause of the First Amendment that he is bound to obey.

That the Alabama chief justice revels in seeking to unravel the rule of law shocks. And what multiplies the shock is the deafening Republican silence over Justice Moore’s rebellion against the Constitution despite their characteristic celebration of law and order. The jurist should be removed from office by the Alabama Judicial Inquiry Commission and the Court of the Judiciary for violating his constitutional oath to “support this Constitution [of the United States].” Judges are sacred legal symbols who teach the whole people by their example. To tolerate their defilement of the rule of law with impunity is thus unthinkable.

The case against Justice Moore leaps from the pages of the unanimous decision of the 11th U.S. Circuit Court of Appeals in Glassroth and Howard vs. Roy S. Moore (July 1, 2003). In his capacity as chief justice, Justice Moore installed a transfixing 2 ton monument of the Ten Commandments as the chef-d’oeuvre of the rotunda in the Alabama State Judicial Building. 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 conflict. He testified as follows during a trial testing whether the Ten Commandments display violated the establishment clause because it put government in the business of sponsoring religion:

“Question: [W]as your purpose in putting the Ten Commandments monument in the Supreme Court rotunda to acknowledge God’s law and God’s sovereignty?”

“Answer: Yes.”

“Question: Do you agree that the monument, the Ten Commandments monument, reflects the sovereignty of God over the affairs of men?”

“Answer: Yes.”

“Question: And the monument is also intended to acknowledge God’s overruling power over the affairs of men, would that be correct?”

“Answer: Yes.”

In sum, the Justice Moore aimed to proselytize in favor of the supremacy of the Ten Commandments over the Constitution and laws of the United States through the exploitation of his control over the Alabama State Judicial Building. He would not be satisfied with missionary work as a private citizen preaching to persons eager to listen with unbuttoned ears.

For two centuries since the landmark ruling in Marbury vs. Madison (1803), the Supreme Court of the United States has been understood as the final arbiter of constitutional questions. The case of Cohens vs. Virginia (1824) clarified that state courts are bound to honor Supreme Court decisions. And the Civil War conclusively determined that neither states nor state officers may unilaterally sever their constitutional obligation to accept and enforce federal decrees.

These principles stem directly from the constitutional text, not from judicial invention. Article VI, Clause 2 of the Constitution unambiguously declares: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof … shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Clause 3 fortifies the Supremacy Clause by mandating that “judicial Officers” of the several states take an “Oath or Affirmation, to support this Constitution.”

According to unbroken precedents of the U.S. Supreme Court following Lemon vs. Kurzman (1971), government actions whose purpose or primary effect is to promote religion are constitutional heresy under the establishment clause. Evidence was overwhelming proving that Justice Moore’s motivation behind Ten Commandments monument was the exaltation of religion in the affairs of men. During his unveiling catechizing, he preached that “we must invoke the favor and guidance of almighty God;” and, that the monument “marked the return of the knowledge of God in our land.” He also said speeches conceived by mere mortals would never be worthy of equal position and prominence because placing “a speech of any man alongside the revealed law of God would tend to diminish the very purpose of the Ten Commandments monument.”

The predominant effect of the monument was also the advancement of religion. As the trial court found, an ordinary visitor would conclude that the state of Alabama was celebrating Christianity from the monument’s conspicuous appearance, its location and setting in the rotunda, and its sacred religious text.

A three-member panel of the 11th Circuit — with appointees of Presidents Ronald Reagan, George H.W. Bush and William Jefferson Clinton — thus held the Ten Commandment display unconstitutional. Its removal from the rotunda was ordered.

Justice Moore, however, disputed his duty to comply with that court decree. He assailed the keystone of the rule of law: namely, the duty of every government official, like every citizen, to honor the constitutional precedents of the U.S. Supreme Court unless and until they are either overruled or superceded by constitutional amendments. Reminiscent of “Massive Resistance” dogmas against the desegregation ruling of Brown vs. Board of Education (1954), Alabama’s foremost jurist insisted that his personal interpretation of the Constitution was the measure of his official duties. Thus, he was not answerable to a higher judicial authority.

But his argument invites anarchy and the ruination of the Constitution. As U.S. Chief Justice John Marshall observed in United States vs. Peters (1803): “If the legislatures [or judges] of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the Constitution itself becomes a solemn mockery.”

Despite the 11th Circuit’s decree, Justice Moore continues to rail against his subjection to the rule of law. He amplified: “It has always been our position that the federal courts simply have no jurisdiction to tell the people of Alabama that it is improper to acknowledge God by the display of this monument depicting the moral foundation of law.”

What could be better calculated to bring into disrepute the law the Justice Moore is by oath or affirmation obliged to follow?

Bruce Fein is a founding partner of Fein and Fein.

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