Moore Petition to Supreme Court - Pages 22 to 26


place a monument acknowledging God as the moral foundation of law is to turn that Clause on its head. As Justice Thomas has pointed out in his Zelman concurrence, there is nothing in the Fourteenth Amendment that changes the original state protective design of the Establishment Clause unless there is evidence that the state official’s legislative action has impaired the “liberty” interest of a person in contravention of the Due Process Clause. 536 U.S. at 697.

E. The Lemon Test Violates The Establishment Clause.

As an antidote to a diseased Establishment Clause jurisprudence, Chief Justice Moore prescribed not another test, but the healing remedy of the constitutional text. Reminding the courts below that the first rule of constitutional interpretation is to attend to the meaning of each word of the text (see Holmes v. Jennison, 39 U.S. (14 Peters) 540, 570-71 (1840)), the Chief Justice contended that the monument was not “a law respecting an establishment of religion.” He maintained that the monument was not a “law” because it prescribed no “rule of civil conduct commanding what is right and prohibiting what is wrong.” See I W. Blackstone, Commentaries on the Laws of England 44 ( Univ. of Chi. Facs. ed. 1765). Rather, the Chief Justice maintained that the monument was simply a “decorative reminder of the moral foundation of law.” Glassroth, 335 F.3d at 1294. Second, the Chief Justice relied on the original definition of religion as set forth in Art. I, § 16 of the Virginia Constitution and James Madison’s 1785 Memorial and Remonstrance, and as embraced by this Court in Reynolds v. United States, 98 U.S. 145 (1878), Davis v. Reason, 133 U.S. 333 (1890), and Everson v. Rd. of Educ., 330 U.S. 1 (1947), and as confirmed in Torcaso v. Watkins, 367 U.S 488, 492 n.7 (1961). Chief Justice Moore claimed that the monument did not respect “an establishment of religion” in that it did not concern those duties owed exclusively to the Creator, enforceable by reason and conviction. Rather, the Chief Justice stated that the monument



presented the Ten Commandments as the moral foundation of the law of civil society, including the law of freedom of religion and limited civil government as reflected in the first table of the Ten Commandments. Thus, the Chief Justice confirmed that the monument was not an unconstitutional "law" respecting an establishment of "religion."

The District Court rejected the Chief Justice’s proof that the monument did not respect “religion,” not because it found the proffered definition unsupported by the constitutional text and history, but because it found the definition “dangerous” and “unwise,” leading to results that it could not countenance. 229 F. Supp. 2d at 1313 n.5 (App. 90a). Candidly admitting that it could offer no alternative definition of religion—”lack the expertise” to do so—the District Court rejected the original, and only, constitutional definition ever embraced by this Court—on the ground that the constitutional definition conflicts with modern Establishment Clause decisions of this Court. Id. at 1313-14 (App. 90a-92a).

The Court of Appeals, likewise, rejected the constitutional definition of religion on the sole ground that it “is inconsistent with the Supreme Court’s because [ presupposes a belief in God,” 335 F.3d at 1295 (App. 26a), which itself is inconsistent with this Court’s acknowledgment that “ are a religious people whose institutions presuppose a Supreme Being.” Zorach v. Clauson, 343 U.S. 306, 313 (1952). The Court of Appeals cited no Supreme Court case where this Court has repudiated its endorsement of the theistic definition of religion as embraced by James Madison’s Memorial and Remonstrance. To the contrary, several justices on this Court

Quoting verbatim the 1776 Virginia Bill of Rights, Madison stated that “religion” is “the duty that we owe to our Creator” when “the manner of discharging it, can be directed oniy by reason and conviction, not by force or violence.” Thus, he concluded that any person who fails to discharge such a duty is answerable only to God, not men. By this theistic defmition of religion, Madison was able to determine those duties subject solely to



have referred to Madison ’s theistic definition of religion in his Memorial and Remonstrance as the source of their understanding of “the individual freedom of conscience protected by the First Amendment.” See Wallace v. Jaffree, 472 U.S. 38, 53 n.38 (1985). Accord Corp. of the Presiding Bishop of the Church of Jesus Christ of Latter Day Saints v. Amos, 483 U.S. 327, 341 n.2 (1987) (Brennan, J., concurring in the judgment). Additionally, in numerous cases, this Court has explored Madison ’s Memorial and Remonstrance, and other 1 8th-Century sources, to ascertain the meaning and application of the Establishment and Free Exercise Clauses. See, e.g., Lee, 505 U.S. at 590-608, 612-15, 621-27, 633-36, 640-42. Indeed, as evidenced by Justices Scalia’s and O’Connor’s recent debate over the Free Exercise ruling in Employment Div. v. Smith, 494 U.S. 872 (1990), Madison’s theistic definition of religion has continued to play a leading role in this Court’s Free Exercise jurisprudence. See City of Boerne v. Flores, 521 U.S. 507, 541-42, 560-61 (1997). That definition should prevail in this Court’s Establishment Clause jurisprudence, for the very text of the First Amendment demands only “one definition of religion:”

"Religion" appears only once in the Amendment. But the word governs two prohibitions and governs them alike. It does not have two meanings, one narrow to forbid "an establishment," and another, much broader, for securing "the free exercise thereof."

Everson, 330 U.S. at 32 (Rutledge, J., dissenting).

Likewise, there is no reason for this Court to disregard the clear language that the Establishment Clause applies only to a “law” respecting an establishment of religion. Even this Court has recently acknowledged that the Establishment Clause is individual conscience. J. Madison, Memorial and Remonstrance, reprinted with approval inEverson v. Bd. of Educ., 330 U.S. i, 63-64 (1947).



directed at the exercise of “legislative power.” See Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 301 (2000). Yet, in “religious display” cases, this Court has, in effect, amended the Establishment Clause, by ruling that the Clause may be violated by either a “statute or practice.” See County of Allegheny , 492 U.S. at 592.


In recent years, courts have assumed that this Court’s precedents prevail over the Constitution as the supreme law of the land. Thus, relying solely on court precedents, the Court of Appeals below rejected the Chief Justice’s contention that, because of his oath of office, the District Court had no jurisdiction to enjoin him to remove the monument. Glassroth, 335 F.3d at 1302 (App. 42a). Furthermore, the Court of Appeals ruled that “the rule of law” demands that—no matter how erroneous—the Chief Justice must obey the District Court order unless the order is “overturned through the usual appellate processes.” Id. at 1303 (App. 43a). The Court of Appeals is mistaken.

A. The Chief Justice Cannot Be Enjoined To Act Contrary To His Oath.

For 200 years, federal courts have been exercising the power of judicial review in reliance upon this Court’s decision in Marbuiy v. Madison . Today, even critics of the exercise of this power assume that Marbury established that the federal courts are above the Constitution, and that the Constitution is what the judges say it is. This is not true. Twice, in Marbury, Chief Justice John Marshall stated just the opposite. After taking note of the declaration in Article VI that “


(6) See, e.g., D. Limbaugh, A Clashing of Principles and Jurisdictions, ( Aug. 22, 2003), available at! archives/articles! 2003/8/21/21491 3.shtml.



Constitution ... shall be the Supreme Law of the Land," Chief Justice Marshall wrote:

{T]his particular phraseology ... confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and courts as well as other departments, are bound by that instrument.

5 U.S. at 180. After a review of several constitution provisions directly related to the exercise of power by the courts, Chief Justice Marshall concluded:

From these, and many other selections which might be made, it is apparent that the framers of the constitution contemplated that instrument, as a rule of government of courts .... Why otherwise does it direct judges to take an oath to support it?

Id. at 179-80.

For Chief Justice Marshall, the swearing of an oath to support the constitution was especially important:

Why does a judge swear to discharge his duties agreeably to the constitution of the United States , if that constitution forms no rule for his government?

Id. at 180. Indeed, Chief Justice Marshall concluded that it would be “immoral” to require a judge to perform his judicial duties in a manner that would violate that judge’s oath:

This oath certainly applies, in an especial manner, to their [ conduct in their official character. How immoral to impose it upon them, if they were to be used as knowing instruments, for violating what they swear to support?


By ruling that Chief Justice Moore’s oath to support the United States and Alabama Constitutions was no defense to a