Moore Petition to Supreme Court - Pages 11 to 15


removed “from the non-private areas of the Alabama State Judicial building.” Glassroth v. Moore , No. 01-T-1268-N, slip op. at 5 (M.D. Ala. Aug. 5, 2003) (App. 127a). Consistent with the Chief Justice’s testimony prior to the issuance of the December 23, 2002 injunction that he could not obey the order and, at the same time, be true to his oath of office, the Chief Justice declined to remove the monument.



There are compelling reasons why this Petition should be granted. First, this Court has failed to discharge its duty to provide a uniform rule of law governing Establishment Clause cases, as required by Articles III and VI of the United States Constitution. See Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304, 347-48 (1816). Second, because this Court has failed to conform its Establishment Clause jurisprudence to the Constitution, it has led to a misuse of the power of judicial review, which presupposes that judges will be faithful to their oaths to submit to the written constitution as their “rule of government.” See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 179-80 (1803).

Even though several members of this Court over the past twenty-three years have found this Court's Establishment Clause jurisprudence to be seriously deficient, the Court has failed to provide a remedy. As a consequence of this failure,


(2) Although not parties to the case, the District Court’s fmal judgment and injunction were served on the eight Associate Judges of the Alabama Supreme Court. On August 27, 2003, “pursuant to their obligation to comply, the eight Associate Justices ordered the building manager to remove the monument.” McGinley v. Houston, No. 03-T-0895-N, slip op. at 5, 2003 WL 22150719 (M.D. Ala. Sept. 04, 2003). Thus, as of the filing date of this Petition, the monument is situated in a closet behind locked doors in the State Judicial Building . See id.



the lower federal courts are floundering in a sea of precedents with no legal rudder. As the Court of Appeals below observed, “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.” 335 F. 3d at 1288 (App. 13a). Thus, the Court of Appeals concluded that because “factual specifics and context are everything when it comes to applying the Establishment Clause to religious symbols and displays” ( Id. at 1300 (App. 38a)), it was required by its “clear error” rule to defer to the District Court’s findings of fact. See Id. at 1291 (App. 19a). In so doing, the Court of Appeals has dramatically revealed that, under this Court’s prevailing Lemon test, Establishment Clause cases turn not on careful appellate review of the application of legal norms, but on the fact- finding discretion of trial judges. Rulings in Establishment Clause cases, then, turn not on a uniform rule of law. It is time, therefore, for this Court to seriously reexamine Lemon v. Kurtzman, 403 U.S. 603 (1971), and its progeny.

The failure to provide a clear rule governing the Establishment Clause has not deterred lower federal courts from issuing injunctions requiring government officials to conform their conduct to their constitutional interpretations. Thus, even though the Court of Appeals below recognized that this case was not decided by a "bright-line rule," but upon a trial court's fact-finding discretion, it still proclaimed that "the rule of law" requires the highest judicial officer of a state to put aside his oath of office to support the Constitution of the United States and the Constitution of his state, and obey a district court's injunction, unless reversed by a higher court. See 335 F. 3d at 1303 (App. 43a). According to Article VI of the United States Constitution, State officers—judicial, executive, and legislative—take the same oath of office to support the United States Constitution as do federal judges. In so doing, state officers swear allegiance to " Constitution as the supreme law of the land," not allegiance to the



federal judiciary. It has been commonly assumed, however, that judicial precedent controls the Constitution. This assumption is not true. As Chief Justice Marshall asserted in Marbury v. Madison , a federal judge takes an oath to decide cases “agreeably to the constitution,” not agreeably to judicial precedent. See Marbury, 5 U.S. at 180. Furthermore, in the exercise of the power of judicial review, the federal courts are subject to the checks and balances of the judicial, executive and legislative officers of the fifty independent and sovereign states, as well as by Congress and the President. As is true of the President and Congress, who cannot be enjoined by the federal courts to perform their discretionary duties of office (see Franklin v. Massachusetts , 505 U.S. 788, 802-803 (1992) (plurality)), no state chief justice, governor, or legislature may be so enjoined. To rule otherwise is to establish rule by judges, not the rule of law.

In this 200th anniversary year of Marbury v. Madison , this case presents a unique opportunity to affirm that this Court’s actions—like the actions of the President, Congress, and state officials—are governed by the express words of the Constitution, itself. Indeed, this case presents to this Court an obligation to revisit its precedents to ascertain if they comply with the rule of the Constitution. If this Court fails to review this case, it would send a clear signal that the federal judiciary is above the Constitution, undermining the very foundation of judicial review recognized in Marbury: That a judge must be true to his sworn oath of office to decide each case “agreeably to the constitution of the United States .” 5 U.S. at 180.


As Justice Souter has recently observed, this Court’s Establishment Clause jurisprudence has reached “doctrinal bankruptcy.” Zelman v. Simmons-Harris, 536 U.S. 639, 688 (2002) (Souter, J, dissenting). Seven years earlier, Justice



Thomas came to a similar conclusion, stating that this Court’s “Establishment Clause jurisprudence is in hopeless disarray.” Rosenberger v. Rector and Visitors of the Univ. of Va. , 515 U.s. 819, 861 (1995) (Thomas, J., concurring). Two years before that, Justice Scalia joined his voice with a chorus of academic critics that this Court’s “Establishment Clause [ constitute a] geometry of crooked lines and wavering shapes.” Lamb ‘s Chapel v. Center Moriches Union Free Sch. Dist., 508 U.s. 384, 399 (1993) (Scalia, J., concurring). And thirteen years previously, Justice Stevens bemoaned the fact that this Court’s Establishment Clause precedents have presented to the courts “the sisyphean task of trying to patch together ‘the blurred, indistinct and variable barrier’ described in Lemon,” this Court’s leading Establishment Clause precedent. Committee for Public Educ. and Religious Liberty v. Regan, 444 U.S. 646, 671 (1980) (Stevens, J., dissenting).

Rather than address a failed Establishment Clause jurisprudence, this Court has justified it, explaining that “it ‘sacrifices clarity and predictability for flexibility.” Edwards v. Aguillard, 482 U.S. 578, 639-40 (1987) (Scalia, J., dissenting) (quoting Committee for Public Educ., 444 U.S. at 662). As Professor Jesse Choper has written, however, this explanation is a “euphemism ... for... the absence of any principled rationale.” J. Choper, The Religion Clauses of the First Amendment: Reconciling the Conflict, 41 U. Pitt. L. Rev. 673, 680-8 1 (1980). As this case demonstrates, it is time to overrule Lemon, and return to the Establishment Clause text.

A. The Lemon Test Is Not A Rule Of Law.

The Court of Appeals below asserted 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." 335 F.3d at 1288 (App. 13a). Thus, the Court of Appeals' review of the District Court's decision was fact-oriented and limited to a "review [ the] District Court fact findings



only for clear error.” Id. at 1291 (App. 19a). While such deference to a trial court’s findings of fact provides maximum “flexibility,” such flexing of judicial discretion has fractured the Establishment Clause that this Court is sworn to support.

First, such invertebrate adjudication provides an altogether too convenient way to reconcile all Establishment Clause decisions without the guidance of a uniform rule. All a court need do is find some factual difference, and every Establishment Clause case may be reconciled with every other one, even when the subject is the same, such as public displays of the Ten Commandments on government property. See id. at 1298-1301 (App. 34a-40a).

Second, ad hoc decision-making excuses this Court from having to exercise its supervisory power over conflicting decisions of the United States Courts of Appeals. See Sup. Ct. Rule 10(a). According to this Court’s Establishment Clause “flexibility” policy, as applied by the Court of Appeals below, there would never arise a case where a Ten Commandments display case would merit review by this Court on the ground that the Court “has decided an important federal question in a way that conflicts with relevant decisions of this Court.” There can simply be no conflict if each Ten Commandments display case can be factually distinguished from every other one. Indeed, in light of recent decisions denying certiorari in Ten Commandments cases, it appears that this Court is sending a signal to the lower courts that they may resolve these cases at their discretion. See, e.g., Elkhart v. Books, 532 U.S. 1058 (2001). Thus, in the Establishment Clause arena the Constitution is not the supreme law of the land, but varies circuit to circuit, and district to district, depending on the specific facts and circumstances of each case as determined by individual judges.

Third, this Court's Establishment Clause "flexibility" policy covers up a legal void recognized by numerous courts of