Chief Justice Moore refuses to remove 10 commandments

pgwenthold said:
Meanwhile, the others seem to have the view that "all religions are equal, but some are more equal than others." However, even if that is true, I still think it fails, because there is no universally agreed upon "10 commandments," even within the christian sects themselves, much less when considering judaism or islam.

How can the government select the protestant version of the 10C over the catholic version and not claim they are establishing a favored religion?
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This was one of Justice Stevens's main points. (I am pleased to say that I actually predicted Justice Stevens would raise the issue during oral argument, and in fact he did!)

And Justice Scalia's response to this issue was surprisingly shallow:
The three most popular religions in the United States, Christianity, Judaism, and Islam--which combined account for 97.7% of all believers--are monotheistic. See U. S. Dept. of Commerce, Bureau of Census, Statistical Abstract of the United States: 2004-2005, p. 55 (124th ed. 2004) (Table No. 67). All of them, moreover (Islam included), believe that the Ten Commandments were given by God to Moses, and are divine prescriptions for a virtuous life. See 13 Encyclopedia of Religion 9074 (2d ed. 2005); The Qur'an 104 (M. Haleem trans. 2004). Publicly honoring the Ten Commandments is thus indistinguishable, insofar as discriminating against other religions is concerned, from publicly honoring God. Both practices are recognized across such a broad and diverse range of the population--from Christians to Muslims--that they cannot be reasonably understood as a government endorsement of a particular religious viewpoint.
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Material submitted to the Court prior to argument--including material submitted by Jewish, Christian and Muslim groups--showed that there is not an agreement on what the Ten Commmandments are, nor is there agreement that they are deemed divine proclamations, nor is there general consent that the Commandments are binding upon or revered by all Muslims. In other words, the religious folks themselves said, "We have some serious disputes about these matters," and Justice Scalia in effect said, "No, you don't."

Justice Stevens was on solid footing when he said:
There are many distinctive versions of the Decalogue, ascribed to by different religions and even different denominations within a particular faith; to a pious and learned observer, these differences may be of enormous religious significance. In choosing to display this version of the Commandments, Texas tells the observer that the State supports this side of the doctrinal religious debate. The reasonable observer, after all, has no way of knowing that this text was the product of a compromise, or that there is a rationale of any kind for the text's selection.

The Establishment Clause, if nothing else, forbids government from [in the words of Justice Scalia] "specifying details upon which men and women who believe in a benevolent, omnipotent Creator and Ruler of the world are known to differ." Given that the chosen text inscribed on the Ten Commandments monument invariably places the State at the center of a serious sectarian dispute, the display is unquestionably unconstitutional under our case law. (Citations omitted.)
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By the way, the words Justice Stevens quoted came from Justice Scalia's dissenting opinion in Lee v. Weisman, and pertained to the Supreme Court's long-standing consistency of position (which does not coincide with Justice Scalia's own view):
And I will further concede that our constitutional tradition, from the Declaration of Independence and the first inaugural address of Washington, quoted earlier, down to the present day, has, with a few aberrations, see Church of Holy Trinity v. United States, 143 U.S. 457 (1892), ruled out of order government-sponsored endorsement of religion - even when no legal coercion is present, and indeed even when no ersatz, "peer-pressure" psycho-coercion is present - where the endorsement is sectarian, in the sense of specifying details upon which men and women who believe in a benevolent, omnipotent Creator and Ruler of the world are known to differ (for example, the divinity of Christ). (emphasis added)
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In light of this quote from Justice Scalia's opinion in Lee v. Weisman, his historical analysis in the Ten Commandments cases is of somewhat questionable value. Also in question are his credentials as a conservative, as he apparently seeks to overturn a line of "constitutional tradition" that had been followed (with the exception of a few "aberrations") for over 200 years.
 
Brown said:
Curiously, if the facts of this situation were exactly the same except that ex-Judge Moore installed a monument that listed the pillars of Islam, I suspect that most people in the country would have little difficulty understanding why the monument was inappropriate.
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I'm sure this is true. However, in a certain limited sense, the difficulty in that case would actually be less justifiable than in the real case. I say this because a portion of the arguments advanced (and testimony given) in favor of the monument would have been objectively even weaker, or could not have been made at all, if the monument had been Islamic. Be that as it may, as I have frequently observed here, I'm with the courts on this one. (I do, however, give more credit to Scalia's McCreary dissent than you do.)
 
May as well resurrect this thread again. The Sixth Circuit has ruled against an elected Ohio judge who wanted to display the Ten Commandments in his courtroom. (I say "his" courtroom as a matter of convenience. The room of course was not his personal private property, although the judge apparently argued a point to the contrary.) Originally, he displayed a version of the commandments by itself. After being told he constitutionally could not do that, he created a new display. His new display compared what he called the "Moral Absolutes" of one version of the commandments with the "Moral Relatives" he gleaned from humanist writings.

Said the appellate court,
(T)he poster in this case is not merely a display of the Ten Commandments in Defendant's courtroom. It sets forth overt religious messages and religious endorsements. It is a display of the Ten Commandments editorialized by Defendant, a judge in an Ohio state court, exhorting a return to "moral absolutes" which Defendant himself defines as the principles of the "God of the Bible." The poster is an explicit endorsement of religion by Defendant in contravention of the Establishment Clause.
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Even for Ten Commandments cases, this one is--or ought to be--a slam dunk. Although it is likely that the Supreme Court will be asked to review the Sixth Circuit, a further review is unlikely.

One final point... there are a lot of litigants, people of average intelligence who never went to law school, who can spot a stupid judge. There are few things more disheartening when a litigant enters a courtroom and comes to learn that his case is in jeopardy, not because of nuances of the law or technicalities of the evidence, but because the judge is a dumb-ass. Anyone of average intelligence who appeared before this judge, and who read his poster, would have more than adequate cause for concern that his money, his liberty, perhaps his livelihood or his life, are in the hands of a dumb-ass.
 
Brown - if this went to the Supremes (although as you say, it won't) how would Clarence Thomas rule? Would he buy the judge's argument that it is just a matter of free speech, and none of this Lemon test stuff matters?

(at least, that is what it seems the defense is based upon)
 
Brown said:
May as well resurrect this thread again. The Sixth Circuit has ruled against an elected Ohio judge who wanted to display the Ten Commandments in his courtroom. (I say "his" courtroom as a matter of convenience. The room of course was not his personal private property, although the judge apparently argued a point to the contrary.) Originally, he displayed a version of the commandments by itself. After being told he constitutionally could not do that, he created a new display. His new display compared what he called the "Moral Absolutes" of one version of the commandments with the "Moral Relatives" he gleaned from humanist writings.

Said the appellate court,Even for Ten Commandments cases, this one is--or ought to be--a slam dunk. Although it is likely that the Supreme Court will be asked to review the Sixth Circuit, a further review is unlikely.

One final point... there are a lot of litigants, people of average intelligence who never went to law school, who can spot a stupid judge. There are few things more disheartening when a litigant enters a courtroom and comes to learn that his case is in jeopardy, not because of nuances of the law or technicalities of the evidence, but because the judge is a dumb-ass. Anyone of average intelligence who appeared before this judge, and who read his poster, would have more than adequate cause for concern that his money, his liberty, perhaps his livelihood or his life, are in the hands of a dumb-ass.
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Why isn't there a system in place that penalizes this type of behavior?
 
For what it's worth, I was at lunch in Birmingham last weekend and saw a young man sitting at another table wearing one of those "I'm with ROY" t-shirts they passed out when this whole thing was going down. I'm not sure if he was wearing it to make a political statement or if he just needed a clean shirt for the day (a sentiment any male who has been through college can understand), but regardless, there it was.
 
Tony said:
Why isn't there a system in place that penalizes this type of behavior?
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There is, but it's not applied.

At the federal level, the constitution mandates that judges can only be removed from their office by impeachment, which requires the cooperation of both the House and the Senate; no sitting Senator wants to waste time on silly matters like this. Beyond this, of course, no sitting Senator wants to be viewed by his conservative constitutents to be "voting against the Ten Commandments."

In theory there's another system of judicial discipline, the Judicial Conduct and Disability Act, (28 U.S.C. §§ 372[c]), that provides for discipline not rising to the level of impeachment that is handled within the judiciary. In practice, I don't think that any judge has ever been punished under this system. No matter what the content of a complaint is, it will be dismissed.
 
drkitten said:
There is, but it's not applied.

At the federal level, the constitution mandates that judges can only be removed from their office by impeachment, which requires the cooperation of both the House and the Senate; no sitting Senator wants to waste time on silly matters like this. Beyond this, of course, no sitting Senator wants to be viewed by his conservative constitutents to be "voting against the Ten Commandments."

In theory there's another system of judicial discipline, the Judicial Conduct and Disability Act, (28 U.S.C. §§ 372[c]), that provides for discipline not rising to the level of impeachment that is handled within the judiciary. In practice, I don't think that any judge has ever been punished under this system. No matter what the content of a complaint is, it will be dismissed.
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I believe the judge here was an elected Ohio judge, not an appointed federal judge. The judge is probably subject to Ohio judicial ethics rules, although I do not know what those rules are or what tribunal administers them (and I do not want to take the time to find out right now).

(By the way, earlier in this thread, you may see something astonishing: When Roy Moore announced that he was not going to obey a federal order, I pointed out that such conduct could--even ought to--subject him to discipline on ethical grounds... which is exactly what happened! Too bad I didn't put in a claim for the million bucks, since that prediction was better than any that I've seen from any self-proclaimed psychics.)

Another possible avenue of pursuit is legal ethics, which is generally more encompassing than judicial ethics. All practicing lawyers are licensed by one or more states, and each state can discipline lawyers for ethical violations. Proceedings were instituted against President Bill Clinton in Arkansas, you may recall, and Clinton no longer has his license to practice. Judges that hold law licenses can usually be disciplined, too, and if they need to have a law license to practice, then loss of that license can disqualify them from the bench.

Curiously, there is one judgeship in the US for which a law license is not required: The US Supreme Court. Thus, if someone were to initiate a state ethics complaint against (to pick a completely random justice) Clarence Thomas for (to pick a completely fanciful infraction) repeatedly lying about his wife's income on his 2003-07 Supreme Court financial disclosure forms, discipline against this individual that affected his law license would not disqualify him from sitting on the High Court.
 
Brown said:
I believe the judge here was an elected Ohio judge, not an appointed federal judge. The judge is probably subject to Ohio judicial ethics rules, although I do not know what those rules are or what tribunal administers them (and I do not want to take the time to find out right now).
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Quite. Neither do I, which is why I just cited the federal rules as examples of a theoretical but ineffective discipline system.

Another possible avenue of pursuit is legal ethics, which is generally more encompassing than judicial ethics.
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Shrug. Only if enforced. I admit to a certain degree of astonishment that Roy Moore was disciplined by the state of Alabama for doing what every Alabama lawyer secretly wants to do....
 
pgwenthold said:
Brown - if this went to the Supremes (although as you say, it won't) how would Clarence Thomas rule? Would he buy the judge's argument that it is just a matter of free speech, and none of this Lemon test stuff matters?

(at least, that is what it seems the defense is based upon)
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You will hear some people say that Clarence Thomas is not an "activist judge." If by "activist judge" one means a judge that will not disregard precedent in facor of his own personal opinions, then a case may be made that Clarence Thomas is as activist as they come. And it is no clearer in any area of law other than in the church-state area.

As I discussed in this thread (as well as a few others), Justice Thomas has proffered points of view that are a departure from precedent. In the Pledge of Allegiance case, he flat out said that the precedent supported the constitutionality challenge, but he thought the precedent was wrong:
I conclude that, as a matter of our precedent, the Pledge policy is unconstitutional. I believe, however, that Lee was wrongly decided.
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Justice Thomas also proposed in at least two cases the goofy notion that the first right in the Bill of Rights applies to States, not to individuals.

So how would he rule, even though the precedents are clear? I know which way I'd bet.
 
As I've said before, there is nothing that prevents a judge from resigning his post and becoming a clergyman. If he wants to wear the robe of a judge, rather than the robe of a clergyman, he is not supposed to impose or urge or even SUGGEST religious mandates(which was pretty clearly what he was doing), especially upon individuals who are coerced to appear before him.

For those who see some sort of thorny legal issue here, they may overlook a very simple solution: Let the judge resign and let him post his principles--as religious as he'd like--on his own private property.
 
drkitten said:
Quite. Neither do I, which is why I just cited the federal rules as examples of a theoretical but ineffective discipline system.
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States vary, but the ethics enforcement schemes in some states have more "teeth" than in others. Some have more bureaucratic and political hurdles than others. Some are more independent from conventional political influence than others. I do not know where Ohio sits in that spectrum.
 
Brown said:
You will hear some people say that Clarence Thomas is not an "activist judge." If by "activist judge" one means a judge that will not disregard precedent in facor of his own personal opinions, then a case may be made that Clarence Thomas is as activist as they come. And it is no clearer in any area of law other than in the church-state area.
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Why do you think I asked? :)

Aside from the fact that it is a given that he and Scalia would rule the same way, the fascinating part is that they would use completely different grounds to support it. As far as I have seen, Scalia doesn't throw out all precedent like Thomas, yet they keep coming to the same conclusion.

Actually, perhaps a more interesting question is, how would Scalia rule?
 
Upchurch said:
I'm sorry to double post this one, but this is bugging me. What law did the federal court break with this order?

I don't know about Alabama, but one of the main founding principles of this country was that religion cannot be mandated by the state. at all. ever. The founding fathers put that in the first clause of the first ammendment to protect the country from this very kind of thing.
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I've long thought it to be one of the more bizarre creations of the Left that the First Amendment somehow requires or justifies censorship and suppression of religious beliefs.

It is my opinion that the effort, on the part of the federal government, to force the removal of this monument is exactly the sort of abuse that the First Amendment was intended to prohibit; and that in trying to do so, it is rather blatantly violating the letter and the spirit of the First Amendment.


There is no harm caused by the presence of this monument. It is an expression of values and principles that those who placed it think are important and relevant; but nobody is being forced to agree with these principles or this message, any more than anyone is forced to agree with any other policy enacted by any level of government.

This attempt at censorship is entirely unjustified and uncalled-for.
 
Bob Blaylock said:
I've long thought it to be one of the more bizarre creations of the Left that the First Amendment somehow requires or justifies censorship and suppression of religious beliefs.
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If by "the Left" you mean the Supreme Court, and by "suppression of religious beliefs" you mean government endorsing religion, then yes, I might agree with you.

Edit and by "bizarre" you mean appropriate.
 
Bob Blaylock said:
I've long thought it to be one of the more bizarre creations of the Left that the First Amendment somehow requires or justifies censorship and suppression of religious beliefs.

It is my opinion that the effort, on the part of the federal government, to force the removal of this monument is exactly the sort of abuse that the First Amendment was intended to prohibit; and that in trying to do so, it is rather blatantly violating the letter and the spirit of the First Amendment.


There is no harm caused by the presence of this monument. It is an expression of values and principles that those who placed it think are important and relevant; but nobody is being forced to agree with these principles or this message, any more than anyone is forced to agree with any other policy enacted by any level of government.

This attempt at censorship is entirely unjustified and uncalled-for.
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Yes! I'm looking forward to the L Ron Hubbard Court with a nice mural of Xenu nuking volcanoes full of people as you walk in! I certainly wouldn't worry about the judge's impartiality if he insisted to all and sundry that Psychiatry is a sham and only Scientologists can cure your ills!

I'm certain that placing religious monuments inside of courtrooms is a lovely idea! I hope my next court date includes the details of Sharia law stenciled all about the building! That will convince me entirely that the secular authority of the country is on my side!

I do feel that religion should stay out of the cafeteria, however. I haven't the foggiest idea how one eats a flying spaghetti monster, or if it's blasphemy to do so.
 
Bob Blaylock said:
I've long thought it to be one of the more bizarre creations of the Left that the First Amendment somehow requires or justifies censorship and suppression of religious beliefs.

It is my opinion that the effort, on the part of the federal government, to force the removal of this monument is exactly the sort of abuse that the First Amendment was intended to prohibit; and that in trying to do so, it is rather blatantly violating the letter and the spirit of the First Amendment.


There is no harm caused by the presence of this monument. It is an expression of values and principles that those who placed it think are important and relevant; but nobody is being forced to agree with these principles or this message, any more than anyone is forced to agree with any other policy enacted by any level of government.

This attempt at censorship is entirely unjustified and uncalled-for.
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See people are expected to obey the law and their job. I mean if your view held think of how well the DMV would work when every person working there made sure to witness to every patron there for a half hour. Waiting times would be measured in days.
 
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