Glassroth v. Moore, Civil Action No. 01-T-1268, and Maddox v. Moore, Civil Action No. 01-T-1269, US District Court for Alabama, November 18, 2002 --- US Federal Court Orders Chief Justice of the Alabama State Supreme Court to Remove Ten Commandments Monument from the Hall of Justice for Violation of the Establishment Clause of the US Constitution.
By
Atty. Manuel J. Laserna Jr.
Introduction
On November 18, 2002 the US (Federal) District Court for Alabama ordered the Chief Justice of the Alabama State Supreme Court (Hon. Roy S. Moore) to remove “a two-and-a-half ton granite monument—engraved with the Ten Commandments and other references to God—in the Alabama State Judicial Building with the specific purpose and effect of acknowledging the Judeo-Christian God as the moral foundation of our laws”. Applying the decisions of the US Supreme Court in Lemon v. Kurtzman, 403 U.S. 602, 91 S. Ct. 2105 (1971), and Marsh v. Chambers, 463 U.S. 783, 103 S. Ct. 3330 (1983), the US District Court held that the Establishment Clause of the First Amendment, made binding upon the States through the Fourteenth Amendment to the United States Constitution, provides that government “shall make no law respecting an establishment of religion.”
But the US District Court, in announcing the holding, cautioned that it was important to clarify that it did not hold that it was improper in all instances to display the Ten Commandments in government buildings; nor did it hold that the Ten Commandments were not important, if not one of the most important, sources of American law. Rather the US District Court’s limited holding was that the Chief Justice’s actions and intentions in this case “crossed the Establishment Clause line between the permissible and the impermissible”.
The Case
The plaintiffs in the two consolidated lawsuits were Stephen R. Glassroth, Melinda Maddox, and Beverly Howard. The defendant was Roy S. Moore, Chief Justice of the Alabama Supreme Court. The plaintiffs sought enforcement of the First and Fourteenth Amendments to the United States Constitution through 42 U.S.C.A. § 1983. The court’s jurisdiction had been properly invoked pursuant to 28 U.S.C.A. §§ 1331 (federal question) and 1343(a)(3) (civil rights).
The events giving rise to the litigation went back several years. As a state court judge in Gadsden, Alabama, then-Judge Roy S. Moore displayed a hand-carved plaque of the Ten Commandments in his courtroom. He also invited clergy to lead prayer in his courtroom before trials. These acts led to two highly publicized lawsuits involving the American Civil Liberties Union of Alabama. The first, brought in March 1995, was dismissed for lack of standing. See Alabama Freethought Ass’n v. Moore, 893 F. Supp. 1522 (N.D. Ala. 1995). The second, brought in April 1995 by the State of Alabama, sought a declaratory judgment that Judge Moore’s display of the Ten Commandments was constitutional; that lawsuit was dismissed by the Alabama Supreme Court as nonjusticiable. See Alabama ex rel. James v. ACLU of Alabama, 711 So. 2d 952 (Ala. 1998). A large part of Judge
Moore’s funding for these lawsuits-- $170,000--came from Coral Ridge Ministries, an evangelical Christian media outreach organization with television and radio broadcasts that covered all major Alabama cities.
On November 7, 2000, Judge Moore was elected Chief Justice of the Alabama Supreme Court. During his campaign for Chief Justice, Judge Moore capitalized on the name recognition that he had obtained during the 1995 lawsuits. Judge Moore’s campaign referred to him as the “Ten Commandments Judge,” and virtually everything put out by the campaign referenced the Ten Commandments. Shortly after his election, now-Chief Justice began designing a monument depicting, in his words, “the moral foundation of law” and reflecting “the sovereignty of God over the affairs of men.” By God, the Chief Justice specifically meant the Judeo-Christian God of the Holy Bible and not the God of any other religion.
On August 1, 2001, Chief Justice Moore unveiled a 5,280- pound granite monument in the large colonnaded rotunda of the Alabama State Judicial Building, which houses the Alabama Supreme Court, the Court of Criminal Appeals, the Court of Civil Appeals, the state law library, and the Alabama Administrative Office of Courts. Coral Ridge Ministries filmed both the monument’s installation, which occurred the night before, and its unveiling; it was the only media outlet to film either occasion. The Chief Justice installed the monument with neither the approval nor the knowledge of the Alabama Supreme Court’s other eight justices. He made all final decisions with regard to the specific language appearing on the monument, as well as its size, shape, color, and location within the Judicial Building. No tax dollars were used in the monument’s construction or installation. Chief Justice Moore has final authority over what decorations may be placed in the Judicial Building rotunda.
Engraved on the left tablet was: “I am the Lord thy God”; “Thou shalt have no other Gods before me”; “Thou shalt not make unto thee any graven image”; “Thou shalt not take the name of the Lord thy God in vain”; and “Remember the sabbath day, to keep it holy.” Engraved on the right tablet is: “Honour thy father and thy mother”; “Thou shalt not kill”; “Thou shalt not commit adultery”; “Thou shalt not steal”; “Thou shalt not bear false witness”; and “Thou shalt not covet.”
The north (front) side of the monument has a large quotation from the Declaration of Independence, “Laws of nature and of nature’s God,” and smaller quotations from George Mason, James Madison, and William Blackstone that speak of the relationship between nature’s laws and God’s laws. The large quotation on the west (right) side of the monument is the National Motto, “In God We Trust”; the smaller quotations on that side were excerpted from the Preamble to the Alabama Constitution and the fourth verse of the National Anthem. The south (back) side of the monument bears a large quotation from the Judiciary Act of 1789, “So help me God,” and smaller quotations from George Washington and John Jay speaking of oaths and justice. The east (left) side of the monument has a large quotation from the Pledge of Allegiance 1954, “One nation under God, indivisible, with liberty and justice for all,” and smaller quotations from the legislative history of the Pledge, James Wilson, and Thomas Jefferson suggesting that both liberty and morality are based on God’s authority. The full quotations from all four sides of the monument are attached as Appendix B to this opinion.
The Decision
- Locus standi
Chief Justice Moore argued that these two lawsuits should be dismissed because the plaintiffs do not have standing to bring them. The US District Court held that, at “an irreducible minimum,” a person seeking to invoke a court’s authority must have standing, that is, must be able to “’show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant,’ and that the injury "fairly can be traced to the challenged action’ and ‘is likely to be redressed by a favorable decision.’” [Valley Forge Christian Coll. v. Ams. United for Separation of Church and State, 454 U.S. 464, 472, 102 S. Ct. 752, 758 (1982)]. To have standing to challenge a display under the Establishment Clause, the plaintiffs must suffer personal injury “as a consequence of the alleged constitutional error, other than the psychological consequence presumably produced by observation of conduct with which one disagrees.” (Id. at 485, 102 S. Ct. at 765). The personal injury may be noneconomic in nature. An “effect on an individual’s use and enjoyment of public land is a sufficient noneconomic injury to confer standing to challenge governmental actions.” [ACLU of Georgia v. Rabun County Chamber of Commerce, Inc., 698 F.2d 1098, 1105 (11th Cir. 1983)].
All three plaintiffs were attorneys who “regularly practiced law in Alabama’s courts”. Each had testified that he or she had come into “direct contact with the monument” on multiple occasions, and each expected to do so in the future as a result of his or her professional obligations. Each found the monument “offensive”, and each had said the monument had made him or her feel like an “outsider.” The monument therefore had a “direct negative effect” on each plaintiff’s “use and enjoyment” of the rotunda. Plaintiff Glassroth testified in his deposition that he found the use of the Ten Commandments in the Chief Justice’s campaign to be “a shameless political use of religion.” Plaintiff Maddox, too, thought that the Chief Justice was “using religion to further his political career”; she also said she was “embarrassed” by the Chief Justice long before he was elected Chief Justice, when, as a state trial judge, he displayed a Ten Commandments plaque in his courtroom. Plaintiff Howard said she was “bothered by the Chief Justice’s reliance on his religious views in making his decisions as Chief Justice”.
The US District Court stated that the plaintiffs “were among the few, if not the only, attorneys who had the commendable courage to sue a judge or justice to seek personal redress under the First Amendment for the harm they had suffered and continue to suffer”.
- Establishment Clause
According to the US District Court that Chief Justice Moore’s purpose in displaying the monument was “non-secular” was self-evident. At the monument’s unveiling ceremony, the Chief Justice explained that the monument “serves to remind ... that in order to establish justice we must invoke ‘the favor and guidance of almighty God.’” He made clear that, in order to restore this moral foundation of law, “we must first recognize the source from which all morality springs ...[by] recogniz[ing] the sovereignty of God.” Thus, he made clear that, while the monument depicted the “moral foundation of law,” it was ultimately a monument to “the giver of this foundation, the Judeo-Christian God”. He saw the placement of the monument in the Judicial Building rotunda as not only “the beginning of the restoration of the moral foundation of law to our people,” but, more fundamentally, as “a return to the knowledge of God in our land.”
In his trial testimony before the US District Court the Chief Justice explained that “the Judeo-Christian God reigned over both the church and the state in this country”, and that “both owed allegiance to that God”. The Chief Justice described essentially “a vertical or standing triangle, with God at the top as the sovereign head, and with the state and the church, side-by-side, forming the base under God”.
According to the US District court, “The Ten Commandments are undeniably a sacred text in the Jewish and Christian faiths, and no legislative recitation of a supposed secular purpose can blind us to that fact.” [Stone v. Graham, 449 U.S. 39, 41, 101 S. Ct. 192, 194 (1980)]. The Ten Commandments have “a secular aspect as well”. The Court found that experts on both sides had testified that “the Ten Commandments were a foundation of American law, that America’s founders looked to and relied on the Ten Commandments as a source of absolute moral standards”.
Applying the “proselytization test” enunciated in County of Allegheny v. ACLU, Greater Pittsburgh Chapter, 492 U.S. 573, 109 S. Ct. 3086 (1989), the US District Court held
What is the “reasonable observer” standard? The US District Court, citing Capitol Square Review & Advisory Board v. Pinette, 515 U.S. 753, 115 S. Ct. 2440 (1995), held that Courts would broadly extend the reasonable observer concept “to the universe of reasonable persons and ask whether some viewers of the religious display would be likely to perceive a government endorsement”; or that it is “similar to the ‘reasonable person’ in tort law,” and “must be deemed aware of the history and context of the community and forum in which the religious display appears”; or that it refers to what would be thought by ‘the community’—not by outsiders or individual members of the community”. [Lamb’s Chapel v. Center Moriches Union Free School District, 508 U.S. 384, 113 S. Ct. 2141 (1993)].
The US District Court stated that a reasonable observer would know that the Chief Justice of
the Alabama State Supreme Court ran as the “Ten Commandments Judge” during his campaign for Chief Justice, that the Chief Justice placed the monument in the Judicial Building rotunda to fulfill his campaign promise “to restore the moral foundation of law,” and that, as the Chief Justice repeatedly emphasized at the unveiling, the monument “serves to remind ... that in order to establish justice we must invoke ‘the favor and guidance of almighty God.’” The US District Court held that “the Ten Commandments monument, viewed alone or in the context of its history, placement, and location, ha(d) the primary effect of endorsing religion” and as such, the monument “violate(d) the second prong of the Lemon test, and it therefore violate(d) the Establishment Clause”.
The Chief Justice contended that the United States Supreme Court’s historical analysis in Marsh v. Chambers, 463 U.S. 783, 103 S. Ct. 3330 (1983), rather than its test from Lemon, should be applied to determine the outcome of the case. But the US District Court held that “in Marsh, the (US Supreme) Court concentrated on the very specific nature of the facts in that case to conclude that the Nebraska legislature’s practice of opening each session with a non-sectarian prayer did not violate the Establishment Clause”; that the US Supreme Court, in Marsh, focused on the fact that “[t]he opening of sessions of legislative and other deliberative public bodies with prayer is deeply embedded in the history and tradition of this country (and that) from colonial times through the founding of the Republic and ever since, the practice of legislative prayer has coexisted with the principles of disestablishment and religious freedom.”; and that the “the Continental Congress itself adopted the procedure of opening its sessions with a prayer”. [id.; see also Lamb’s Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384, 395, 113 S. Ct. 2141, 2148 (1993); Zelman v. Simmons-Harris, ___ U.S. ___, ___, 122 S. Ct. 2460, 2476 (2002); Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 314, 120 S. Ct. 2266, 2282 (2000); Bown v. Gwinnett County Sch. Dist., 112 F.3d 1464, 1468 (11th Cir. 1997); Jager v. Douglas County Sch. Dist., 862 F.2d 824, 829 n.9 (11th Cir. 1989), cert. denied, 490 U.S. 1090, 109 S. Ct. 2431 (1989); County of Allegheny v. ACLU, Greater Pittsburgh Chapter, 492 U.S. 573, 603, 109 S. Ct. 3086, 3106 (1989); Edwards v. Aguillard, 482 U.S. 578, 107 S. Ct. 2573, 2577 (1987); Wallace v. Jaffree, 472 U.S. 38, 105 S. Ct. 2479, 2493 (1985)].
The defendant Chief Justice further contended that, under Marsh, the monument was constitutional because “judges throughout our nation’s history have acknowledged the moral foundation of law and, indeed, have depended upon it in reaching their decisions.” He pointed to an uninterrupted history, from as early as 1819 to today, in which courts “interacted with, relied upon, or otherwise discussed the moral foundation of the law [in their decisions].” As such, the Chief Justice contended that his reference to “God and to God’s law on the monument do not render it unconstitutional.” The Chief Justice also argues that the acknowledgment of God made by this monument is no different from the acknowledgments of God appearing on United States currency, in the United States motto, and at the opening of court sessions. Basically, the Chief Justice argued that the monument’s acknowledgment of God, like the legislative prayer upheld in Marsh, is part of our nation’s history. Additionally, the Chief Justice presented evidence of numerous displays of the Ten Commandments in judicial buildings and other government buildings in Washington, D.C. The Chief Justice argues that the existence of these Ten Commandments displays demonstrate a history of such displays which validate the constitutionality of his own display under.
The Chief Justice’s first argument, that the monument is constitutional under Marsh because of the historical validation provided by judicial acknowledgment in court opinions of the moral foundation of law, and other governmental acknowledgments of God, was flawed. According to the US District Court:
“Even assuming the Chief Justice’s contentions are true, that judges in their opinions throughout American history have recognized the moral foundation of law, it does not follow that this monument should be considered simply as part of that long history of recognition; nor does it follow that this monument is simply one in a long line of governmental acknowledgments of God. First, as discussed previously, the Chief Justice’s understanding of the moral foundation of our laws flows from his beliefs that the Judeo-Christian God is the source of the church, the state, and the separation of the two, and, as a matter of not only Biblical text but American law, reigns over both. The Chief Justice has not shown that other judges have recognized this same understanding of the sovereignty of the Judeo-Christian God, and, given the Chief Justice’s unique views, the court cannot assume that they did. Second, there is a significant difference between “an obtrusive year-round religious display” installed in the Alabama State Judicial Building in order to “place the government’s weight behind an obvious effort to proselytize on behalf of a particular religion,” (County of Allegheny v. ACLU, Greater Pittsburgh Chapter, 492 U.S. 573, 661, 109 S. Ct. 3086, 3137 (1989) (Kennedy, J., concurring in part and dissenting in part), and the discussion of the moral foundation of our laws in a court’s opinion, or the ceremonial recognition of God on money or at the opening of court.”
(See also: Lynch v. Donnelly, 465 U.S. 668, 687, 104 S. Ct. 1355, 1366 (1984), finding that legislative prayer is significantly different from prayer at a high-school graduation; Marsh, 463 U.S. 795, 103 S. Ct. 3338 holding that non-sectarian legislative prayer was constitutional; Lee v. Weisman, 505 U.S. 577, 599, 112 S. Ct. 2649, 2661 (1992) finding that prayers at high school graduation were unconstitutional).
The US District Court added:
“Similarly, ‘ceremonial deisms,’ such as legislative prayers or opening Court sessions with ‘God save the United States and this honorable Court,’ are different from public acknowledgments of a sectarian God… (Allegheny, 492 U.S. 630, 109 S. Ct. at 3120-21 …noting that legislative prayer solemnizes public occasions and expresses hope in the future; finding an obvious difference between crèche displays and references to God in the National Motto and the Pledge of Allegiance). As such, neither an unbroken history of judicial recognition of the moral foundation of law, nor ceremonial acknowledgments of a non-sectarian God, both of which are very different from the Chief Justice’s permanent, prominent granite monument to the sovereignty of God, is enough to find the Chief Justice’s actions constitutional under the Marsh exception.
Additionally, while the Chief Justice has brought other displays of the Ten Commandments to the court’s attention, he has not demonstrated that any of the “unique” circumstances from Marsh exist in this case. First, the Chief Justice has not shown that members of the Continental Congress displayed the Ten Commandments in their chambers, nor that they directly approved of its public display by the government. Second, public, governmental displays of the Ten Commandments, installed with the purpose of proselytization and having a religious effect, are not “deeply embedded in the history and tradition of this country,” (Marsh, 463 U.S. at 786, 103 S. Ct.at 3333…). Thus, the Chief Justice has failed to show that similar displays are common or even generally accepted in this country.”
The US District Court “disagree(d) with the Chief Justice … that, as a matter of American law, the Judeo-Christian God must be recognized as sovereign over the state, or even that the state may adopt that view”. The Court stated that such was “an opinion about the structure of American government, rather than a matter of religious conscience, that the court feels fully comfortable refusing to accept”. It further held:
First and foremost, the Chief Justice’s belief that American law embraces the sovereignty of God over the state has no support in the text of the First Amendment. The First Amendment simply states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Nowhere does the Constitution or the First Amendment recognize the sovereignty of any God, Judeo-Christian or not, or describe the relationship between God and the state. In fact, this country’s founding documents support the idea that it is from the people, and not God, that the state draws its powers. As every American schoolchild knows, the Declaration of Independence states that “governments are instituted among Men, deriving their just powers from the consent of the governed,” and the Constitution begins with that immortal phrase, “We the People of the United States, in Order to form a more perfect Union ... do ordain and establish this Constitution for the United States of America.” Hence, the Chief Justice has no textual support, in either the Constitution as a whole or the First Amendment itself, for his legal understanding of the relationship between God and the state, and the court must therefore reject that understanding.
Second, the Chief Justice’s understanding of this relationship has no support in Supreme Court law. No Supreme Court decision and, the court believes, no Supreme Court justice, has suggested that the First Amendment itself actually incorporates the notion of a Judeo-Christian God as the sovereign head of this nation. The First Amendment does not elevate one religion above all others, but rather it places all religions on par with one another, and even recognizes the equality of religion and non-religion. See Allegheny, 492 U.S. at 590, 109 S. Ct. at 3099 (“Perhaps in the early days of the Republic these words were understood to protect only the diversity within Christianity, but today they are recognized as guaranteeing religious liberty and equality to ‘the infidel, the atheist, or the adherent of a non-Christian faith such as Islam or Judaism.’”) (quoting Wallace v. Jaffree, 472 U.S. 38, 52, 105 S. Ct. 2479, 2487 (1985)). The Chief Justice’s understanding of the First Amendment, however, would discriminate among religions; in fact, it would recognize only Christianity as a “religion” and would relegate Hinduism or Islam, among others, to the lesser status of “faith.” Roy S. Moore, Religion in the Public Square, 29 Cumb. L. Rev. 347, 356-57 (1998/1999) (“By leaving religion undefined, the Court has opened the door to the erroneous assumption that, under the Establishment Clause, religion could include Buddhism, Hinduism, Taoism, and whatever might occupy in man’s life a place parallel to that filled by God, or even Secular Humanism, which might be defined as man’s belief in his own supremacy and sufficiency.”). At trial, the Chief Justice reiterated his belief that only Christianity meets the First Amendment definition of religion, and repeatedly called any other creed a “faith,” rather than a religion. As such, the court must also reject the Chief Justice’s legal understanding of the First Amendment concept of religion for its lack of support in Supreme Court precedent.
The Court stressed: “To be sure, some Justices have been more tolerant than others of state ‘acknowledgment’ of various religions; but none has gone so far as to say that the state should or even may acknowledge one religion—that is, Christianity—as the basis on which all other religious faiths are free to worship as they choose. Were the state to do so, it would be engaging in proselytization on behalf of a particular religion, which even those Justices who read the Establishment Clause more narrowly would prohibit...”.
(See also: School prayer cases Wallace v. Jaffree, 472 U.S. 38, 105 S. Ct. 2479 (1985), or Santa Fe Independent School District v. Doe, 530 U.S. 290, 120 S. Ct. 2266 (2000), where the Court found unconstitutional a statute designed to return voluntary prayer to schools; in Santa Fe, the Court found unconstitutional a policy of student-led prayer before football games).
The US District Court categorically stated that it could not accept the defendant Chief Justice’s proposed definition of the word “religion” that did not acknowledge “Buddhism or Islam as a religion under the First Amendment, and would in fact directly violate Supreme Court precedent by doing so” (citing Allegheny, 492 U.S. at 590, 109 S. Ct. at 3099, which held: ‘Perhaps in the early days of the Republic these words were understood to protect only the diversity within Christianity, but today they are recognized as guaranteeing religious liberty and equality to ‘the infidel, the atheist, or the adherent of a non-Christian faith such as Islam or Judaism.’; and Wallace, 472 U.S. at 52, 105 S. Ct. at 2487).
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