Moore Petition to the Supreme Court - Pages 5-10


comporting with the "moral foundation of law" theme of the rotunda, see id. at 1296 (App. 52a).

B. The Law Suit

Thereafter, Plaintiff-lawyers Stephen Glassroth, Melinda Maddox, and Beverly Howard filed two separate law suits in the United States District Court for the Middle District of Alabama, seeking an injunction requiring the Chief Justice to remove only the monument, claiming that they were “offended” by the monument, which made them feel like “outsiders.” 229 F. Supp. 2d at 1293, 1297-98, 1319 (App. 46a, 54a-56a, 102a). Invoking 42 U.S.C. § 1983, Plaintiff- lawyers claimed that the monument violated the Establishment Clause as applied to the States. Id. at 1293 (App. 46a). Assuming jurisdiction under 28 U.S.C. § 1331 and 1343(a)(3), District Court Judge Myron Thompson tried the two suits, ruling that the three Plaintiff-lawyers had standing and “that the evidence is overwhelming and the law is clear that the Chief Justice violated the Establishment Clause.” Id. at 1293 (App. 45a).

1. Standing

The District Court rejected the Chief Justice’s claim that the three Plaintiff-lawyers’ “offense” was not caused by the monument, but by their disagreement with the Chief Justice’s views on “separation of church and state.” 229 F. Supp. 2d at 1297-98 (App. 54a-57a). Instead, the District Court concluded that the three were offended by the monument, which made them “feel” like outsiders, causing two of them to “change their behavior,” and depriving all three of their “use and enjoyment’ of the rotunda.” Id. at 1297 (App. 55a). The Court of Appeals affirmed that Plaintiffs Maddox and Howard had standing due to the fact that they had altered their behavior because they did not “shar the Chief Justice’s religious views,” “consider the monument offensive,” and “ like outsiders.” Glassroth v. Moore , 335 F.3d 1282, 1292



(11th Cir. 2003) (App. 21a). As for Plaintiff Glassroth, the Court of Appeals concluded that “we are not required to decide whether [ ... who has not altered his behavior as a result of the monument, has standing.” Id. at 1293 (App. 22a).

2. The Constitutional Text vs. Court Tests

Throughout the trial the Chief Justice maintained that the constitutionality of the monument should be measured by the constitutional text: Whether the monument constitutes a "law respecting an establishment of religion." While the District Court rejected on the merits the Chief Justice's contention that the monument was not a "law" (229 F. Supp. 2d at 1314-15 (App. 93a-94a)), it refused to address whether the monument respected an "establishment of religion ," primarily because, in its opinion, the Chief Justice's constitutional definition of religion was contrary to modern precedent. See 229 F. Supp. 2d at 13 13-14 (App. 90a-92a). Unwilling to ascertain a definition of religion that would conform to recent Supreme Court holdings, the District Court confessed that it "lack the expertise to formulate its own definition of religion for First Amendment purposes," and that to attempt to do so would be "dangerous" and "unwise." See id. at 1313 n.5, 1314 (App. 90a, 92a-93a).

Having refused the Chief Justice's invitation to adhere to the constitutional definition of religion, as propounded by James Madison and adopted by this Court, the District Court assessed the constitutionality of the monument by applying the so-called Lemon purpose and endorsement tests: whether the purpose of the monument was "non-secular" and whether a reasonable observer would conclude that the monument endorsed religion. 229 F. Supp. 2d at 1299-1304 (App. 58a-71a). Without any attempt to define either "religion" or "non-secular," the District Court found that the monument failed both tests because the monument acknowledged the Judeo-Christian God as the



source of the moral foundation of American law. See id. at 1299-1304 (App. 58a-71a).

The Court of Appeals affirmed the District Court’s refusal to be governed by the text of the Establishment Clause, insisting that recent Supreme Court precedent “foreclosed” the Chief Justice’s contention that the monument was neither a “law” nor “religion,” and thus was not forbidden by the express terms of the Establishment Clause. 335 F.3d. at 1294-95 (App. 25a- 27a). Instead, the Court of Appeals substituted this Court’s Lemon test for the constitutional text, and without defining either “non-secular” or “religion,” affirmed the District Court’s finding of an impermissible “non-secular” purpose and “endorsement of religion.” Id. at 1295-97 (App 27a-32a).

3. This Ten Commandments Case

After applying the Lemon test, the Court of Appeals surveyed other Ten Commandments cases, and concluded that the District Court’s resolution of this Ten Commandments case was consistent with other lower federal court decisions striking down factually similar Ten Commandments displays, and not inconsistent with factually dissimilar displays that have been upheld. 335 F.3d at 1298-1301 (App. 34a-39a). Indeed, the District Court prefaced its opinion with the “announce [ it] does not hold that it is improper in all instances to display the Ten Commandments in government buildings; nor does [ hold that the Ten Commandments are not important, if not one of the most important, sources of American law.” 229 F. Supp. 2d at 1293 (App. 45a). The court even acknowledged that the evidence in this case established that “the first tablet” of the Ten Commandments “has secular aspects,” as “the Chief Justice pointed out in his speech unveiling the monument in his reference to Samuel Adams’s “referring to the King as a false idol, alluding to the Commandment that ‘Thou shalt have no other Gods before me.” Id. at 1300 App. 60a). Nevertheless, the District Court found “that the Chief Justice’s actions and



intentions in this case crossed the Establishment Clause line between the permissible and the impermissible.” Id. at 1293 (App. 45a-46a).

In examining the “actions and intentions” of the Chief Justice, the District Court did not conduct a “deferential and limited” review of the Chief Justice’s official actions and statements in relation to the placement of the monument. Instead, the court engaged in a wide-ranging survey of the Chief Justice’s personal religious views and professional legal opinions, including the Chief Justice’s views of the Establishment Clause as set forth in a law review article published years before he became Chief Justice (see id. at 1311, 13 12-13 (App. 85a, 88a-98a)), and the Chief Justice’s views of the relationship between church and state as stated in a dissenting opinion in a case before the Alabama Supreme Court. See id. at 1309 (App. 80a-82a). After this intrusive odyssey through the mind and heart of the Chief Justice, the court emerged to apply the “purpose” prong of the Lemon test without distinguishing between the Chief Justice’s “purpose” and “motive” “because of the extent to which the Chief Justice’s religious views control his understanding of the structure of government.” Id. at 1316 n.6 (App. 96a). Thus, in reaching the conclusion that the purpose of the monument was “non-secular,” the District Court examined the monument, and the Chief Justice’s official actions thereto, through the prism of the Chief Justice’s general religious and legal philosophy, rather than by reference to the texts on the monument or to the Chief Justice’s actual statements and actions taken in relation thereto. Thus, the District Court’s finding that the monument’s purpose was impermissibly religious was inextricably intertwined with its finding that the Chief Justice’s personal and legal views, insofar as they informed his official actions,

1 See Wallace v. Jaffree, 472 U.S. 38, 74-75 (1985) (O’Connor, J., concurring).



were constitutionally impermissible. See id. at 1299-1301 (App. 58a-64a).

The Court of Appeals deferred to these District Court findings, maintaining that “the purpose inquiry is a factual one and on appeal we are obligated to accept the district court’s findings of fact unless they are clearly erroneous.” 335 F.3d at 1296-97 (App. 30a). Indeed, the Court of Appeals prefaced its entire opinion with the explanation that “Establishment Clause challenges are not decided by bright-line rules, but on a case- by-case basis with the result turning on the specific facts.” Id. at 1288 (App. 13a). Thus, the Court of Appeals, like the District Court, made no effort to limit its inquiry into the actual purpose of the monument, as reflected by the monument itself and the Chief Justice’s official action thereto, but rather relied upon the District Court’s probe into the Chief Justice’s religious and legal views and attributed them to the monument. See id. at 1286-87 (App. 8a-lOa).

4. The Chief Justice's Oath

Having made the Chief Justice’s personal religious and legal views their constitutional litmus test, both the District Court and the Court of Appeals highlighted the conflict between the District Court’s injunction and the Chief Justice’s oath to support the United States and Alabama constitutions. Initially, this conflict was averted by the District Court’s decision to decline to “enter an injunction requiring Chief Justice Moore to remove his Ten Commandments monument forthwith,” preferring instead to enter a declaratory judgment that the monument violated the Establishment Clause as applied to the States. 229 F. Supp. 2d at 1319 (App. 102a-103a). When the Chief Justice did not voluntarily remove the monument, the District Court issued an injunction directing the Chief Justice to remove the monument. 242 F. Supp. 2d at 1067 (App. 116a). With the issuance of the injunction, the Chief Justice was faced with the choice of either conforming his official



conduct to the District Court’s order or to his oath to support the First Amendment to the United States Constitution, and to the Preamble to the Alabama Constitution. This conflict was again averted by the District Court’s grant of a stay of the injunction pending the Chief Justice’s appeal to the Court of Appeals. Glassroth v. Moore , 242 F. Supp. 2d 1068 (M.D. Ala. 2002) (App. 118a).

The Court of Appeals summarily dismissed the Chief Justice's claim that the District Court's injunction required him to violate his oath of office as being no different from "the position taken by those southern governors who attempted to defy federal court orders during an earlier era." 335 F.3d at 1302 (App. 42a). Not only did the Court of Appeals consider the Chief Justice's claim to be contrary to judicial precedent and Article III, § 1 and Article VI, cl. 2 of the United States Constitution, but a direct threat to the rule of law:

The rule of law does require that every person obey judicial orders when all available means of appealing them have been exhausted. The chief justice of a state supreme court, of all people, should be expected to abide by that principle. We do expect that if he is unable to have the district court's order overturned through the usual appellate processes, when the time comes Chief Justice Moore will obey that order. If necessary, the court order will be enforced. The rule of law will prevail.

335 F.3d at 1303 (App. 43a).

5. The Case on Remand to the District Court

Upon remand, and notwithstanding the Chief Justice's objection, on August 5, 2003, the District Court "lifted and dissolved" its December 23, 2002 stay, reinstated its December 19, 2002 order to "enjoin and restrain" the Chief Justice "from failing to remove ... the Ten Commandments monument, and set a new date—August 20, 2003—for the monument to be