November 20, 2002
Judge refuses to remove 10 Commandments monument
(UPI, Nov. 20, 2002)
Alabama Chief Justice Roy Moore said Tuesday he will not move a 5,300-pound granite Ten Commandments monument he installed in the state's judicial building in July 2001 and he will appeal a federal court ruling that said it was unconstitutional. [...]
Moore said it was hypocritical for Thompson to have ruled that the Ten Commandments monument "has the primary effect of endorsing religion," when Thompson's federal court building has a sculpture of the Greek goddess of justice. [...]
"The Ten Commandments monument, viewed alone or in the context of its history, placement, and location, has the primary effect of endorsing religion," Thompson's written opinion said.
Judge Thompson appears to have that secret version of the Constitution that activists whip out from time to time. None of the copies I've ever been privileged to see make any mention of "endorsement". Rather they say: "Congress shall make no law respecting an establishment of religion". A monument, particularly one erected by a completely different branch of government, set up to honor the Commandments, which are shared by innumerable religious sects, can in no wise be said to "establish" a religion.
Posted by Orrin Judd at November 20, 2002 12:25 PM
The question I haven't seen asked about this issue is: could Justice Moore have installed a statue of Lassie? Is the Chief Justice allowed to spend money on statues at his discretion? Isn't that the bigger issue?
In most systems, including the Feds, the Chief actually administers a lot of the mundane aspects of court business, including such things. Moore actually helped install the thing though. He sounds like a nut, but in the very best sense of the word.
Judge Thompson appears to be applying the Lemon precedent fairly reasonably -- unfortunately that case was wrongly decided. The establishment clause was a federalism provision blocking the federal government from interfering with the various state establishments. (For instance, Massachusetts required everyone to contribute to Protestant churches, and barred Catholics from holding public office.) It hardly falls under the scope of the 14th Amendment, which empowers the federal government to enforce the "privileges and immunities" (="rights and freedoms") of US citizens against the states. Thus the federal gov't can bar a state from interfering with anyone's free exercise of religion, but it can't bar it from "establishing" religion in a way that doesn't interfere with free exercise, e.g. putting up a Ten Commandments display.
Re AOG's point, clearly the state legislature has the power to decide the issue. It appears they have not blocked Judge Moore's action, as the monument has been around for years now. Regardless, the extent of Moore's powers is a state issue, not one a federal court can adjudicate.