comporting with the "moral foundation of law" theme of the rotunda, see id. at 1296 (App. 52a).
B. The Law Suit
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).
3. This Ten Commandments Case
were constitutionally impermissible. See id. at 1299-1301 (App. 58a-64a).
4. The Chief Justice's Oath
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