Alabama Supreme Court

[Ned]

"To invoke Divine guidance on a public body entrusted with making the laws is not, in these circumstances, an "establishment" of religion or a step toward establishment; it is simply a tolerable acknowledgment of beliefs widely held among the people of this country. As Justice Douglas observed, "[w]e are a religious people whose institutions presuppose a Supreme Being." Zorach v. Clauson, 343 U.S. 306, 313 (1952)"

MARSH v. CHAMBERS, 463 U.S. 783 (1983)

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=463&invol=783

There is indeed a difference between laws that force religion on the people and the recognition of God by the Legislature or the Judiciary in the Supreme Court's jurisprudence.

Moore has a good chance.

[Imran Siddiqui]

This goes beyond 'invoking Divine guidance'. It's a matter of degree.

Moore has no chance in Hell.

[Ned]

Imran, I think the court makes a distinction between what happens in the legislatures and courts, and laws that affect the general population. If you read the dissents in Marsh, you will see that the practice of legislative prayer would clearly have been found unconstitutional if the ordinary rules involving the Establishment Clause were to apply. But they instead permitted legislative prayers here because of its long history and because they saw no problem with invoking Divine guidence on the legislature. Surely the Supreme's will not be caught with endorsing a ban on such guidance for Judicial Branches while permitting it for Legislative.

[Imran Siddiqui]

Like I SAID... this goes beyond a 'prayer'. This is a stone monument of the 10 Commandments in front of a State Supreme Court building. If Congress put it in front of their building, it'd come to the same end result as here.

Like I said before, Moore has NO chance in Hell.

[HershOstropoler]

Originally posted by SpencerH

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.

There's very little judeo-christian input; much of what you may think of is roman law that the church adopted. The old ecclesia romana vivit lege romana.

Considering that the jury system goes (with some other influences) back to the germanic ding and its sacred oaths, it would make more sense to establish a monument to Thor and Odin.

But let's go through the 10 commandments (random translation from the web):

ONE: 'You shall have no other gods before Me.'

Not exactly in modern law.

TWO: 'You shall not make for yourself a carved image--any likeness of anything that is in heaven above, or that is in the earth beneath, or that is in the water under the earth.'

Not exactly in modern law.

THREE: 'You shall not take the name of the LORD your God in vain.'

Not exactly in modern law.

FOUR: 'Remember the Sabbath day, to keep it holy.'

Not exactly in modern law.

FIVE: 'Honor your father and your mother.'

Part of family law; can be found in most legal systems.

SIX: 'You shall not murder.'

Part of criminal law; can be found in virtually every legal system.

SEVEN: 'You shall not commit adultery.'

Not exactly in modern law.

EIGHT: 'You shall not steal.'

Part of criminal law; can be found in virtually every legal system.

NINE: 'You shall not bear false witness against your neighbor.'

Part of criminal or procedural law; can be found in virtually every legal system.

TEN: 'You shall not covet your neighbor's house; you shall not covet your neighbor's wife, nor his male servant, nor his female servant, nor his ox, nor his donkey, nor anything that is your neighbor's.'

Not exactly in modern law.

[Ramo]

Berzerker, I have no idea what your deal is with "Congress shall make no law..." First off, why do you assume that the 14th Amendment extends the Bill of Rights to only state legislatures? After all, the 1st says "Congress," not "The legislature." So, literally taking "Congress" and "law" in the context of state civil liberty issues makes no sense.

Secondly, it doesn't logically follow from the 14th Amendment. The due process clause says that no state shall deprive a person of liberty without due process (paraphrasing). That's "state," not "legislature." Meaning all parts of the state, including the courts. And liberty is interpreted to be those enumerated in the Bill of Rights, including the right to have a state that doesn't respect an establishment of religion.

If the First Amendment should apply only to federal/state legislatures, it'd be time to militantly overthrow such an oppressive government.

Honestly, I don't know how you could possibly support the legitimacy of a government whose courts and executive institutions don't need to respect freedom of speech or religion, etc. Would you really say "ok, fine" if the police decide to arrest you, and the courts lock you up for being a libertarian?

[Ramo]

"respecting an establishment of religion" = with respect to..... i.e. "about"

The language doesnt make sense in the way you are interpreting it.

I have no idea what you're saying.

For the record, this is what the language means.

"respecting" = about

"an establishment of religion" = a church

In other words, Congress shall make no law about a church. That's how I'm intepreting it, and that is the valid interpretation.

[Ned]

Imran, I think that a prayer conducted by chaplain in the Legislature more directly involves religion than does the Ten Commandments display at the Alabama for Supreme Court. Besid,es the degree of involvement here is not the issue. The Supreme Court had no problem with a Legislature conducting a prayer to inaugurate its sessions. I presume that the Supreme Court similary have no problem with the Supreme Court of Alabama inaugurating its sessions with a prayer. (I believe the United States Supreme Court even inaugurate its own sessions with a prayer.) If this is the case, then why would presenting the Ten Commandments on display involve religion and away distinct from an opening prayer? The issue again is not the degree of involvement with religion but whether the legislatures and courts can themselves say prayers and display the Ten Commandments without violating the Establishment Clause. Because the Supreme Court ruled that they could do so in the Marsh case, I believe they could rule in the same way in the current case as well.

[Berzerker]

MtG -

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.

The governor of Alabama can say whatever he wants, but such an "order" needs the support of the state legislature through actual legislation if it requires anything of the citizens. There are two kinds of "Executive Orders", one deals with "administrative actions" and operation of the executive branch. Another, unconstitutional group, deals with matters beyond the scope of the executive branch - like when Clinton turned a large chunk of Utah into a national park (or whatever it's called). Congress lets these orders stand because the 2 parties share power and will get their chance to pass executive orders in the future.

And my comment about Congress and the courts trashing the Constitution refers to the much broader attack they've launched on all sorts of matters, not just this issue. If you want to deny that they have trashed the Constitution, then I'd have to doubt your reading comprehension. Hell, if James Madison was alive today, he'd have a snowball's chance in Hades of getting nominated, much less confirmed for the SCOTUS and I suspect you know that. Would you like to do some research to find out when Presidents began issuing executive orders and when the first order served the same function as a law? I'll bet the latter didn't occur until long after the time of George Washington...

civman -

As MtG pointed out, administrative actions are a form of law.

He never cited one person who would be punished for violating this "law", much less that an administrative action ("law") was made by Moore - no proof of anything to support his argument, nada.

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.

How did the EPA come into existence? Legislation? The EPA's alleged authority comes from congressional legislation. And those aren't "administrative actions", they're regulations. Furthermore, those regulations are unconstitutional too because the Constitution did not authorise Congress to empower bureaucrats to legislate via regulation. But that's how dishonest lawyers work, if the Constitution says all legislation begins in the House, then these lawyers simply appropriate other words and give them the force of law while not calling them laws thereby subverting the restrainsts ostensibly imposed by the Constitution. NAFTA, according to them, was not a treaty, but a "trade agreement". What's the difference? Treaties require 2/3rds of the Senate whereas a "trade agreement" took only majorities of both bodies. Where in the Constitution did they find that? Naturally, I reject all this Orwelian doublespeak you guys insist on citing to make your case.

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.

The key word there is "require". It doesn't matter if it's an "offical" act, read what others have posted about the "official acts" of the Founders regarding religion. Where do you think "Christmas" and "Thanksgiving" came from?

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.

Continue the quote, it says "no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States". So, what part of a state government makes laws? The state legislature... And which privilege or immunity was abridged? Btw, that doesn't appear in the due process clause, just the same amendment.

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.

So what? Did Alabama pass a law that requires citizens to have no other God? Did Moore? There has to be a law and there has to be citizens subject to fine or prison (punishment) for violating said law. The key to understanding what "establish" means are the preceding words, and a "law" is required.

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.

Hardly logical, they've turned the word "law" into sentiment as in "Congress shall offer no sentiment"...

[Berzerker]

Ramo -

Berzerker, I have no idea what your deal is with "Congress shall make no law..." First off, why do you assume that the 14th Amendment extends the Bill of Rights to only state legislatures? After all, the 1st says "Congress," not "The legislature." So, literally taking "Congress" and "law" in the context of state civil liberty issues makes no sense.

1) Because a law is required before there can be respect for or establishment of religion - "shall make no law". There has to be a law (or some euphemism that looks and walks like a law).

2) Congress is the legislative branch, that's why it says "Congress shall make no law" - and by extension, the "law"making bodies of the states - state legislatures - are prohibited for the same reason. It doesn't make sense to say the President or Governor "shall make no law" since they are charged with enforcing laws, not making them.

Secondly, it doesn't logically follow from the 14th Amendment. The due process clause says that no state shall deprive a person of liberty without due process (paraphrasing). That's "state," not "legislature." Meaning all parts of the state, including the courts.

You're leaving off the first part of that sentence where the prohibition is on laws, and "states" don't make laws, state legislatures make laws. The relevant sentence mentions "states" because there are prohibitions on different branches of the state governments, "laws" dealing with legislatures and "due process" dealing with the judicial and executive branches where laws are enforced. The question at hand is whether or not any legislature made a law since that is the langauage in the 1st Amendment, due process is irrelevant to this issue...

And liberty is interpreted to be those enumerated in the Bill of Rights, including the right to have a state that doesn't respect an establishment of religion.

Read the 9th Amendment, it says we have unenumerated rights. And this right you claim we have is a right to not have our state legislature pass "laws" respecting an establishment of religion - there was no law passed by any state legislature.

If the First Amendment should apply only to federal/state legislatures, it'd be time to militantly overthrow such an oppressive government.

Why? The other branches enforce laws and require "laws" to act so mentioning them in prohibitions on making laws is illogical.

Honestly, I don't know how you could possibly support the legitimacy of a government whose courts and executive institutions don't need to respect freedom of speech or religion, etc.

How does this monument violate your freedom of speech or religion?

Would you really say "ok, fine" if the police decide to arrest you, and the courts lock you up for being a libertarian?

That would require a "law" prohibiting my being a libertarian, no law is involved here. No one is being punished for anything, it's a piece of stone sitting on public land.

In other words, Congress shall make no law about a church. That's how I'm intepreting it, and that is the valid interpretation.

While that isn't the actual language and since people can practice religion without any church, I'd say that's a stretch. But let us deal with the Founders time and their fears - and they did fear national religions and churches even though they did not prohibit state churches. Certainly you aren't saying a valid interpretation of the 1st Amendment would allow Congress to pass laws prohibiting any religion who's adherents don't believe in churches.

[Ned]

Bezerker, do you know if the issue you raise is raised in the Alabama case? I did some quick research, but could find no case on point at the Supreme's level.

[SpencerH]

Originally posted by Ramo

In other words, Congress shall make no law about a church. That's how I'm intepreting it, and that is the valid interpretation.

So congress (i.e. a government) couldnt make a law about the maximum height that a church could be?

Here's your original quote

Originally posted by Ramo

I never said the stone established religion. It did respect an establishment of religion, however. Which is prohibited from the establishment clause of the First Amendment.

Yes it is. Congress shall make no law repecting an establishment of religion.

The first Amendment doesn't specifically refer to restricting Congress from establishing a religion, but from respecting an establishment of religion (and the former falls under the latter).

"[the stone] did respect an establishment of religion"

It does not seem to me that you are using respect to mean "about"

"The first Amendment doesn't specifically refer to restricting Congress from establishing a religion, but from respecting an establishment of religion"

So congress can establish a religion but cant show respect for religion. IMO, that's exactly the opposite of the meaning of the 1st amendment.

At this point I'm not clear if we disagree or not

EDIT: I take that last back, we do disagree.

"an establishment of religion" = a church

No! Establishment as used here (200 odd years ago) is a verb.

[Ramo]

Because a law is required before there can be respect for or establishment of religion - "shall make no law". There has to be a law (or some euphemism that looks and walks like a law).

Like court administrative practices. Don't see how that's so different from a law passed by a legislature.

Congress is the legislative branch, that's why it says "Congress shall make no law" - and by extension, the "law"making bodies of the states - state legislatures - are prohibited for the same reason. It doesn't make sense to say the President or Governor "shall make no law" since they are charged with enforcing laws, not making them.

We're no longer living in the 18th century. There are things like executive orders that are equivalent to laws in many ways.

Read the 9th Amendment, it says we have unenumerated rights.

The courts don't take that position.

And this right you claim we have is a right to not have our state legislature pass "laws" respecting an establishment of religion - there was no law passed by any state legislature.

That's irrelevent. Once again, if you really want to take it literally, there are no state or local congresses.

Why? The other branches enforce laws and require "laws" to act so mentioning them in prohibitions on making laws is illogical.

Except there are laws on the books that are quite frightening, and the only thing stopping me from being arrested is that the police and courts are subject to the First Amendment. I don't want to be picked up because some ******* cops and judges want to use the "criminal anarchy" law in Texas.

How does this monument violate your freedom of speech or religion?

I never said it did.

That would require a "law" prohibiting my being a libertarian, no law is involved here. No one is being punished for anything, it's a piece of stone sitting on public land.

Have you taken a look at the US code lately? Like the Espionage Act is still law, that for instance could easily get you thrown in prison. If the executive and judicial branches weren't constrained by the First as you believe they should be.

While that isn't the actual language and since people can practice religion without any church, I'd say that's a stretch. But let us deal with the Founders time and their fears - and they did fear national religions and churches even though they did not prohibit state churches. Certainly you aren't saying a valid interpretation of the 1st Amendment would allow Congress to pass laws prohibiting any religion who's adherents don't believe in churches.

A church isn't a physical thing in this context. Like the "Catholic Church" isn't the Vatican and its properties. In the sense used by the First, it's merely any religious sect. It was designed to mitigate using the feds to contribute to pissing matches between the various denominations (so the Anglicans couldn't fund missionaries to Catholic areas of the country, etc.).

So congress (i.e. a government) couldnt make a law about the maximum height that a church could be?

See above.

It does not seem to me that you are using respect to mean "about"

Why?

So congress can establish a religion but cant show respect for religion. IMO, that's exactly the opposite of the meaning of the 1st amendment.

No, it can't do either. That's why I wrote "but the former falls under the latter."

"an establishment of religion" = a church

No! Establishment as used here (200 odd years ago) is a verb.

No, it's a noun. A verb doesn't have an article before it. If it were used in the sense that you refer to, it would say "Congress shall not establish religion."

Besides, what's the danger of a state church besides promoting one religion over another? After all, no religion can be suppressed, since we have the freedom of religion clause. It's only logical that the establishment clause refers to state support of religions.

[Imran Siddiqui]

If this is the case, then why would presenting the Ten Commandments on display involve religion and away distinct from an opening prayer?

Because it is a clear symbol that this government body favors Judeo-Christian ethic. A prayer merely is for the members of the body. This stone monument says that the supreme judicial body of the state of Alabama endorses Christianity.

Sorry... that's illegal, and that's what the courts have ruled.

So congress (i.e. a government) couldnt make a law about the maximum height that a church could be?

Yep, that's a consequence of saying the 1st Amendment means that Congress can make no law about a church. Even if you argue it isn't about a church, but about all buildings, the law does respect an establishment (if used as a noun) of religion.

[Ned]

Originally posted by Imran Siddiqui

If this is the case, then why would presenting the Ten Commandments on display involve religion and away distinct from an opening prayer?

Because it is a clear symbol that this government body favors Judeo-Christian ethic. A prayer merely is for the members of the body. This stone monument says that the supreme judicial body of the state of Alabama endorses Christianity.

Imran, the Roman Goddess Justitia is displayed in virtually every courthouse in the Western world. Does this display of a Roman Goddess mean that the courts are endorsing paganism?

I think the Supreme's are going to have to wrestle with the contrasting treatment of a display of the Goddess Justitia and the Ten Commandments. Court rulings cannot respect the symbols of one religion while banning the symbols of other religions. I hope you would at least agree with this principle.