Coming Back for Moore

Terry Eastland | Publisher, The Weekly Standard | Thursday, September 11, 2003

Coming Back for Moore

THAT TWO-AND-A-HALF TON Ten Commandments monument no longer sits in the rotunda of the Alabama judicial building, having been wheeled into a storage room. But two issues remain. One involves the meaning of the Constitution, the other the duties of government officials.

The story began in 2001, when Roy Moore, the elected chief justice of the Alabama Supreme Court, used his administrative authority as head of the state judicial system to install the monument, which he had designed and paid for. Lawyers who use the judicial building found the monument offensive on account of its message. They filed a lawsuit in federal court, contending the monument violated the First Amendment's ban on establishing religion.

They won. Justice Moore appealed, but the 11th U.S. Circuit Court of Appeals upheld the lower court and its order that the monument be removed. When Moore refused to obey the injunction, all eight of his Supreme Court colleagues ordered the monument's removal. Even before their directive was carried out last week, a state judicial ethics panel suspended the chief justice for defying the federal court order. A hearing will be held, and the chief could face his own removal--from office.

But the suspended jurist hardly has called it quits and is seeking vindication in the U.S. Supreme Court. Note that his argument ultimately isn't with the lower courts, whose job it is to apply high court decisions interpreting the First Amendment. Indeed, under those decisions, Glassroth vs. Moore was an easy case, not least because Moore, whether by design or not, made it easy.

Supreme Court doctrine requires that a government acknowledgment of religion serve a secular purpose and have a secular effect. Yet the evidence, including Moore's own testimony, overwhelmingly supported the lower courts' conclusion that he intended his monument to serve a religious purpose and that, indeed, its primary effect was to promote religion.

So, Moore's argument really is with the high court, from where the doctrine came, and he wants the justices to perform radical surgery on it. His argument is that only when the state passes a law that commands or prohibits conduct with regard to religion does it violate the establishment clause. Thus, a state is free to promote religion in general or even a particular religion so long as it doesn't regulate actual conduct.

Now, it is true that the Supreme Court's establishment-clause doctrine is a mess intellectually, and federal courts applying it have declared many things unconstitutional that really aren't--consider the Pledge of Allegiance, struck down a year ago by the 9th Circuit on account of those two words, "under God." Moore's understanding of the establishment clause may be more coherent than the court's, yet it staggers the imagination to think the justices might reverse a half-century of precedent and embrace his view of the law and its dramatic implications.

As the 11th Circuit pointed out, "Every government building could be topped with a cross or a menorah or a statue of Buddha, depending on the views of the officials with authority over the premises." And: "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."

The Supreme Court is highly unlikely to take Moore's appeal, much less accept his argument. But the case that will be decided is the one before the state judicial ethics panel, which concerns Moore's refusal to obey the court order. Moore justifies that decision by claiming the order was "unlawful," by which he means it didn't conform to the Constitution as "it is written."

Moore's understanding of the constitutional obligation of government officials to "support this Constitution" is such that any official can decide whether a court order is legally valid and then act accordingly. Moore is wrong about that, so breathtakingly wrong that it is hard to see how the panel reviewing his case can fail to remove him from office. A chief justice should understand that the rule of law requires obedience even to orders a government official disagrees with. The interesting question is why Moore disobeyed the order when resignation was a compelling alternative. After all, resignation would have served the demands of conscience and the rule of law. One can only conclude he failed to understand what his duties required of him.

Terry Eastland is publisher of The Weekly Standard.