Friday, August 15, 2003
Moore pushes unusual legal strategy in Commandments fight
By GINA HOLLAND
Associated Press Writer
WASHINGTON (AP) - The Supreme Court was urged Friday to block the removal of a Ten Commandments monument from an Alabama court, part of an unusual legal strategy by the state's defiant top judge.
Alabama Supreme Court Chief Justice Roy Moore has vowed to ignore a federal court order to move the 5,300-pound granite monument from the state judicial building. A federal judge ruled that the monument violates the Constitution's ban on government promotion of religion and must be removed by next week.
Moore's lawyers, in an extraordinary appeal at the Supreme Court, were challenging the judge's authority to tell Moore, and other state officials, what to do. Moore "has sworn an oath to uphold the Constitution and here's a judge's opinion that tells him he must do something that is contrary to his oath," said Moore's attorney, Herbert Titus.
Titus said the paperwork was filed Friday. It was unclear when it would be processed and reviewed by the justices, who are on their summer break.
"I don't think the Supreme Court would touch this with a 10-foot pole," said Ayesha Khan, legal director of Americans United for Separation of Church and State, one of the groups that sued after Moore moved the monument into the court building in the middle of the night in 2001.
The case brings yet another church-state controversy to the nation's high court. Justices have already been asked to decide in their next session if the Pledge of Allegiance should be barred from public schools because of the phrase "under God."
In 1980, the Supreme Court banned the Ten Commandments from classroom walls in public schools, but justices have not given a broad ruling on the constitutionality of indoor and outdoor government displays. The court has a Ten Commandments depiction in its own courtroom.
In the Alabama case, a panel of the 11th U.S. Circuit Court of Appeals ruled against Moore, who has said that the Ten Commandments represent the moral foundation of American law.
Moore also plans to appeal that ruling to the Supreme Court, Titus said, and he may request an emergency stay of the deadline to remove the monument.
The unusual filing involves a type of appeal known as a writ of mandamus or writ of prohibition. They are rarely used and even more rarely successful. Moore challenged the authority of U.S. District Judge Myron Thompson of Montgomery, Ala., who had said fines of about $5,000 a day could be imposed against the state if the monument were not removed by next Wednesday from the judicial building rotunda.
Washington lawyer Mark Perry, an expert in Supreme Court rules and former court law clerk, said such appeals have been successful only about 10 times in the past century.
Christopher Eisgruber, a law professor at Princeton University who also clerked at the high court, predicted that Moore will have a tough time winning.
"The Supreme Court is never sympathetic to the idea that mandates of federal courts can be ignored," he said. "I think the justices will be bothered by this. Despite their political disagreements with one another, there's a lot of agreement on the court for the need for the rule of law."
Rally planned as Alabama chief justice takes commandments case to Supreme Court
By BOB JOHNSON
Associated Press Writer
MONTGOMERY, Ala. (AP) - Alabama Chief Justice Roy Moore took his fight for a Ten Commandments monument to the U.S. Supreme Court on Friday as buses carrying supporters headed for the state Capitol to pray for his cause.
Moore and his attorneys said they were asking the nation's high court to nullify U.S. District Judge Myron Thompson's order to remove the 5,300-pound monument from the rotunda of the state judicial building.
Moore's petition to the Supreme Court says that Thompson's order "abridges the right of the people _ through their chief justice _ to acknowledge God."
The petition asks the Supreme Court to order Thompson to show cause why he should not "vacate and expunge from the record" his ruling "unlawfully ordering" Moore to move the monument.
Moore pledged to defy Thompson's order. And while some of the state's top judicial officials refused to join his defiance, busloads of people from around the country planned to converge on the Capitol on Saturday to show their support.
Rick Scarborough of Vision American, a national organization of churches, said he knows of people coming from Wisconsin, Colorado and other states. Dozens of protesters were already in Montgomery on Friday and many stopped by to see the monument, some pausing to have a picture taken.
"I'm here because Justice Moore's 100 percent right to acknowledge God," said Dennis Pape of Menominee, Mich.
Scarborough said the rally is about more than whether or not Moore can keep the Ten Commandments monument in the judicial building.
"This is a decisive battle in a 40-year culture war against our faith. It's about a militant minority stripping vestiges of our faith from the public square," Scarborough said.
Thompson ruled that the monument, installed by Moore two years ago, violates the constitution's ban on government promotion of religion. He said fines of about $5,000 a day could be imposed on the state if Moore refuses to move the monument by an Aug. 20 deadline. Moore contends the constitution does not bar the acknowledgment of God in public places.
Richard Cohen of the Southern Poverty Law Center, one of the attorneys for plaintiffs in the lawsuit seeking removal of the monument, said he has no problem with Saturday's rally.
"I think these people have a right to be here. We have a long history of freedom of speech and public assembly," Cohen said. He urged counter-protesters to stay away from the rally "and not inflame the situation."
Shortly after Moore announced he would defy the federal court order, Moore's colleagues on the Supreme Court met privately to discuss whether they can invoke a state law that lets a majority of the nine justices overrule an administrative action by the chief justice. The associate justices took no immediate action.
Associate Justice Douglas Johnstone said Friday that he could not discuss what action the justices might take. Senior Associate Justice Gorman Houston said earlier that the justices were meeting to make certain the state does not have to pay fines. Houston did not return calls seeking further comment Friday.
Moore and seven of the eight associate justices are Republican. Johnstone is the only Democrat.
Alabama Gov. Bob Riley, in Birmingham on Friday to promote his tax and accountability plan, said there's nothing he can do to resolve the stalemate over the monument. He said he hopes the Supreme Court issues a stay to prohibit removal of the monument and will hear the case.
Asked if Moore should obey the court order and remove the monument, the Republican governor said, "Roy will have to decide that for himself."
Republican Attorney General Bill Pryor, the state's top legal officer, said Thursday that he would not help Moore violate the court order. A spokeswoman for Pryor, Suzanne Webb, said Friday the attorney general would not elaborate on what action he might take.
Moore has not answered questions from the news media since making his pledge, but did come out to the steps of the judicial building Friday, where a Jewish rabbi presented him with an embroidery made in Israel that shows the Ten Commandments on Mount Sinai.
Yehuda Levin said he represents two national organizations of orthodox Jewish rabbis. Levin congratulated Moore for "his struggle to keep us rooted in American values" and recited a short prayer in Hebrew.
Another Christian group, the Christian Defense Coalition, is planning a "24-hour" protest beginning at 12:01 a.m. Wednesday, the day of the deadlne. The organization's director, Patrick Mahoney, said protesters would kneel and pray around the building and would enter in small numbers and pray in front of the monument during hours when the building is open.
Judicial building marshal Willie James issued guidelines Friday, saying the protesters would be allowed inside the rotunda in small numbers, but would be asked to leave if they caused a disturbance.