Alabama Supreme Court

[Berzerker]

civman -

Since the 1960s or maybe earlier SCOTUS has held that the due process clause of the 14th amendment generalizes "Congress" to any government body. This argument has had no legal value since then.

It may not have legal value because Congress and the courts have trashed the Constitution, but the language in the 1st Amendment is clear - "Congress shall make no law respecting an establishment of religion". And because of the 14th Amendment, "Congress" is synonymous with the various state legislatures. This monument, or it's placement, is not a law; neither Congress or any state legislature made any law.

The passage of a law, an actual law with the force of law behind it, i.e., a law for which violaters are punished or a law that excludes non-believers from participation in government, is required before religion can be "established".

The monument does not violate the 1st Amendment...

[MichaeltheGreat]

So there! All it takes is an executive order by the Governor, and we can have the official Baptist Church of the Christian State of Alabama, but since there's no law, there's no establishment of religion.

And anyone who says different is trashing the Constitution.

[Lincoln]

Originally posted by molly bloom



The god of Thomas Paine and the god of his audience are not necessarily one and the same- you're making a leap of faith. Even Stalin could quote scripture.

Well I agree that Paine had a different god than most Americans did at that time. And he probably did quote scripture without believing it entirely. But what does that have to do with the religious influence on the founding of the United States? To say that the Christian religion had no influence on the foundational laws is simply an attempt to revise history. As Ned said earlier; it is simply denial of the obvious. If you folks want to establish atheism now then go for it, but try and leave history as it is.

[Lincoln]

Mike and Berz,

No Mike, the placing of a monument does not establish the Baptist religion. and Berz is correct. The USSC is making law now where it used to interpret it. It is too much trouble to change the Constitution so the liberals simply change the meaning of words (eg.. Creator also means abiogenesis). That is the trouble with lawyers having too much time on their hands...

[Lincoln]

I have to leave for a few days so I will post this excerpt from James Madison's "Memorial and Remonstrance" which reasoning is the basis for the 1st Amendment and the seperation of church and state. The Christian religion was not established by the founders but as anyone can plainly see God was indeed a consideration in forming the foundational laws. In that sense Judge Moore is correct that a mere symbol of the historic basis of US law does not establish a religion.

============================

By James Madison

1. Because we hold it for a fundamental and undeniable truth, "that religion or the duty which we owe to our Creator and the manner of discharging it, can be directed only by reason and conviction, not by force or violence." The Religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate. This right is in its nature an unalienable right. It is unalienable, because the opinions of men, depending only on the evidence contemplated by their own minds cannot follow the dictates of other men: It is unalienable also, because what is here a right towards men, is a duty towards the Creator. It is the duty of every man to render to the Creator such homage and such only as he believes to be acceptable to him. This duty is precedent, both in order of time and in degree of obligation, to the claims of Civil Society. Before any man can be considered as a member of Civil Society, he must be considered as a subject of the Governour of the Universe: And if a member of Civil Society, do it with a saving of his allegiance to the Universal Sovereign. We maintain therefore that in matters of Religion, no man's right is abridged by the institution of Civil Society and that Religion is wholly exempt from its cognizance. True it is, that no other rule exists, by which any question which may divide a Society, can be ultimately determined, but the will of the majority; but it is also true that the majority may trespass on the rights of the minority.

2. Because Religion be exempt from the authority of the Society at large, still less can it be subject to that of the Legislative Body. The latter are but the creatures and vicegerents of the former. Their jurisdiction is both derivative and limited: it is limited with regard to the coordinate departments, more necessarily is it limited with regard to the constituents. The preservation of a free Government requires not merely, that the metes and bounds which separate each department of power be invariably maintained; but more especially that neither of them be suffered to overleap the great Barrier which defends the rights of the people. The Rulers who are guilty of such an encroachment, exceed the commission from which they derive their authority, and are Tyrants. The People who submit to it are governed by laws made neither by themselves nor by an authority derived from them, and are slaves.

3. Because it is proper to take alarm at the first experiment on our liberties. We hold this prudent jealousy to be the first duty of Citizens, and one of the noblest characteristics of the late Revolution. The free men of America did not wait till usurped power had strengthened itself by exercise, and entangled the question in precedents. They saw all the consequences in the principle, and they avoided the consequences by denying the principle. We revere this lesson too much soon to forget it. Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects? that the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever?

[Elok]

Y'know, there's something strange about a group as vastly opinionated as the OT crowd taking this much time to debate the wisdom of dead men...

[civman2000]

It may not have legal value because Congress and the courts have trashed the Constitution, but the language in the 1st Amendment is clear - "Congress shall make no law respecting an establishment of religion". And because of the 14th Amendment, "Congress" is synonymous with the various state legislatures. This monument, or it's placement, is not a law; neither Congress or any state legislature made any law.

The passage of a law, an actual law with the force of law behind it, i.e., a law for which violaters are punished or a law that excludes non-believers from participation in government, is required before religion can be "established".

The monument does not violate the 1st Amendment...

As MtG pointed out, administrative actions are a form of law. For example, when the EPA sets an official policy, it is law. Only the courts or Congress can overrule it, and everyone must follow it. Similarly, although placing a 5000 pound rock does not require anyone to follow anything, it still is an official and enforced policy and thus is a law. After all, IIRC the due process clause says "No state," not "No state legislature". As a part of the state government of Alabama, Moore must obey the Bill of Rights.

No Mike, the placing of a monument does not establish the Baptist religion. and Berz is correct. The USSC is making law now where it used to interpret it. It is too much trouble to change the Constitution so the liberals simply change the meaning of words (eg.. Creator also means abiogenesis). That is the trouble with lawyers having too much time on their hands...

First, no one ever claimed that it fully "establishes" any individual religion in the narrow sense. However, it clearly endorses the Judeo-christian school of religions. Secondly, SCOTUS is clearly interpreting two laws: the 1st and 14th amendments. Their conclusion follows logically from them, and even though you may disagree with it, they are still interpreting and not making law.

[Lincoln]

"Similarly, although placing a 5000 pound rock does not require anyone to follow anything, it still is an official and enforced policy and thus is a law."

Is it also an "enforced policy and thus a law" that the Statue of Liberty is in New York? You answered your own question. A statue or monument in a public place does not establish a religion.

[Sava]

Before you guys celebrate the judge's suspension... he was suspended WITH pay.

He knew he was doing something wrong, that's why he snuck around in the middle of the night. What a dickhead. He should be impeached and stripped of his judgeship for violating the consitution, then violating a court order.

What's even more sickening is the Alabamans that have taken up his cause. I heard they were singing "we shall overcome" and using civil rights mantras. What a slap in the face to the civil rights movement that is. These are the same crackers that were hanging blacks and burning crosses just a few years ago.

I'm glad we have a constitution that protects America from these religious whackjobs.

[HershOstropoler]

There are 2 separate issues: Who is obligated by the establishment clause, and what amounts to an establishment.

The establishment clause refers to Congress, bot the executive or judicial branch. Does the constitution allow for an establishment by these two branches, then? The answer is found in the rule of law; without a respective law, these two branches have no power to establish a religion in the first place. Not alowing Congress to make such a law amounts to a ban on the establishment of religion by the federal government.

Now assuming that the states are fully bound by the federal bill of rights, equating "Congress" with "state legislature" only makes sense in so far as there is no other state law, like self-standing executive acts, customary law etc. Either way, the result is that states shall not establish a religion.

Does a statue of the 10 commandments amount to an establishment of religion? I think it would be rather clear if there was a law requiring such a statue in court buildings. It would also be clear if there was a law that only allows judeo-christian symbols in court buildings; this could also infringe upon the "equal protection of the laws".

What about a law that allows government officers to install religious monuments of their choice in public buildings? As it will usually be a reflection of the religious views of the majority, I'm inclined to see this as an establishment of the religion of the majority. But this is a grey area open to debate.

If you agree with that though, the question becomes whether the actions of the chief justice are a state action. Could any citizen establish such a monument? Obviously not. If he acted within his capacity, then the respective law allows for the establishment of religion. If not, his conduct was unlawful anyway.

[rev]

The judge deserves to be railed on for failing to uphold the sacred oath he took and for trying to undermine the very system he runs.

But the protestors? Criticize them for their beliefs, but not for protesting. They're merely exercising one of the most respected rights, held up by the system Moore is trying to undermine.

[molly bloom]

Originally posted by Lincoln
"Similarly, although placing a 5000 pound rock does not require anyone to follow anything, it still is an official and enforced policy and thus is a law."

Is it also an "enforced policy and thus a law" that the Statue of Liberty is in New York? You answered your own question. A statue or monument in a public place does not establish a religion.

It does if the statue is a sacred object- if it were a madonna and child or a copy of the Qu'ran in the court rotunda, would those stout godfearing Southern Baptists be rallying round in solidarity? Hardly. Perhaps you missed the point several dozen posts ago, when I quoted the judges of the Supreme Court who had ruled that the memorial of the decalogue in the King James version of the bible is quite clearly a sacred text, not an example of or reference to, secular law giving. Perhaps your fervour to believe that there is some godless atheist plot is blinding you to the obvious- a memorial or statue which is quite clearly particular to one religion or one branch of one religion, is in and of itself a sacred, not a secular object. The judge's monument admits of no other interpretation. Had he put up an inscription, non-denominational, such as 'do not harm others', or 'behave towards other people as you would expect them to behave towards you', it would not be peculiar to a religion or a branch of a religion, but instead he chooses to foist upon all his own confession, on state property.

He's a shabby populist demagogue- part of a long tradition in the South, cloaking himself in religious 'martyrdom' trappings, to garner support.

[SpencerH]

An important question is whether Moore was acting as a private citizen or as supreme court justice. If as a private citizen, then we should all have the right to add our monuments to 'law' in the same locale. Fine by me, I'll begin plans for my monument to the Magna Carta immediately.

If as el supremo, then is that law? It comes as a bit of a stretch to think that anything he does without consent of the other justices has the weight of law. If he wipes his arse with a particular brand of paper is that then law? Since IMO the addition of the monument is not 'law' despite the tacit approval of a large percentage of the government and population of Alabama how can it break the establishment clause?

The other point is really the issue though, whether a monument containing the ten commandments is in an of itself contrary to the first amendment? Arguments that our laws are secular and not based on judeo-christian religious laws are specious. I believe we have to protect the true meaning of the 1st amendment i.e. that the federal government shall not authorize a state religion (as in the Church of England). If the liberal-atheists have there way, we will need to do away with all law that is not common to all cultures/religions in the world i.e. virtually all law.

[Sava]

But the protestors? Criticize them for their beliefs, but not for protesting. They're merely exercising one of the most respected rights, held up by the system Moore is trying to undermine.

I'm criticizing them for the way they are protesting... comparing their "struggle" to civil rights of blacks... Sure, they have every right to protest against the 1st amendment, protecting America from establishing a religion... but exploiting the civil rights movement for their case is deplorable.

[molly bloom]

Originally posted by SpencerH

Arguments that our laws are secular and not based on judeo-christian religious laws are specious.

No they aren't- because American laws aren't based solely or mainly upon Church or canon law, but upon the body of common law. You're confusing law and morality.

The decalogue is not simply a set of moral precepts or legal arguments- it is quite obviously a religious text, and moreover in the judge's monument a religious text pertaining solely to the Protestant confession.

You can gibber on about liberal atheists, but it remains the case that the judge secured preferential treatment for his religion, on state property. Did the state lease the property to him? Is he paying rent? Did he obtain a licence? At the very least, in Great Britain, he would have had to submit a planning application for consideration by the local authority, and had to make a listed building application if the memorial were to be on, or within the precincts of a listed or heritage building.
Only after public review and scrutiny might he have been granted planning and listed building consent.

Who is responsible if someone injures themself on Moore's erection?