First Amendment? What's THAT?

[Dave Farber <dave () farber net>]

> Date: Mon, 18 Aug 2003 20:29:42 -0400
> From: Randall <rvh40 () insightbb com>
>
>
> http://www.hillnews.com/news/081303/commandments.aspx
>
> AUGUST 13, 2003
>
> New front in religious battle
> Commandments to be protected in spending measure
> By Jonathan E. Kaplan
>
> An Indiana Republican’s amendment to a pending spending bill could block
> federal marshals from enforcing a federal court order to remove a massive
> replica of the Ten Commandments from the Alabama State Judicial Building in
> Montgomery.
>
> Rep. John Hostettler’s amendment to the Commerce, State and Justice spending
> bill adds another element to the religious wars that have broken out of late
> on Capitol Hill. In recent weeks, Republicans have accused Democrats of
> operating an anti-Catholic litmus test that prevents conservative Catholics
> who oppose abortion from being confirmed to the federal bench.
>
> Hostettler told The Hill: “It’s plain clear that Congress can do this
> because according to Article 1, Section 8, and Article 3, given that we
> create [the courts], we also fund them. It’s a very excellent civics lesson
> that once a federal court says something it is not law.”
>
> File photo
> Rep. John Hostettler (R-Ind.) champions amendment to retain Ten Commandments
> in courthouse.
>
> ----------------------------------------------------------------------------
> ----
>
>
> He added: “I do think the 11th Circuit opinion is unlawful,” referring to
> the unanimous appeals panel ruling that affirmed U.S. District Judge Myron
> H. Thompson’s order that Alabama Chief Justice Roy S. Moore remove the
> 5,280-pound monument from the rotunda of the building by Aug. 20.
>
> Although the spending bill, which has cleared the House, has not been signed
> into law. If the Senate goes along, it could create a constitutional crisis
> should Moore defy the federal court order to remove the monument.
>
> During the trial, Moore testified that he intended to teach the citizens of
> Alabama that God’s law trumps laws ordained by men, such as the U.S.
> Constitution, if the two are seen to be in conflict.
>
> Moore’s spokesman told The Hill that he will announce tomorrow whether he
> will abide by the Aug. 20 deadline.
>
> On the political front, Democrats and their likeminded pressure groups view
> the dispute over the Ten Commandments as a positive development in the fight
> to block Alabama Attorney General William H. Pryor’s nomination to the 11th
> Circuit Court of Appeals.
>
> Pryor, who has defended Moore’s actions — and as a state official could
> remove the Ten Commandments if Moore does not — has been the focus of
> anti-Catholic charges leveled at Democrats by Republican senators.
>
> Democrats say Pryor’s nomination cannot be rehabilitated and are reluctant
> to challenge Pryor to enforce the federal court order. Democrats’ allies
> downplayed the controversy and said that court orders should be enforced as
> a matter of course.
>
> “Certainly if Pryor failed to obey the court order to remove the Ten
> Commandments sculpture, that would be further evidence of his unfitness for
> the bench,” said Louis Bograd, legal director of the Alliance for Justice.
>
> Thompson ruled, and the 11th Circuit Court of Appeals agreed, that the
> sculpture’s presence in a public building violates the establishment clause
> of the First Amendment because “[its] primary effect is to advance
>  religion.”
>
> The establishment clause of the First Amendment states: “Congress shall make
> no law respecting an establishment of religion, or prohibiting free exercise
> thereof.”
>
> Judge Ed Carnes, writing for a three-judge panel on the 11th Circuit, said
> that Supreme Court precedent held: “The establishment clause applies to the
> states through the due process clause of the Fourteenth Amendment.”
>
> Hostettler said that Carnes’s opinion was written so that the Supreme Court
> would not overturn his ruling but that past rulings involving issues of
> separation of church and state have been misapplied.
>
> “If a state or federal building … [wanted a] crèche or Star of David or Ten
> Commandments, it’s up to the law of the people,” he said.
>
> Moore, for his part, has said federal courts lack jurisdiction in the
> matter. But Carnes likened Moore to “those Southern governors who attempted
> to defy federal [integration] court orders during an earlier era.”
>
> Moore’s spokesman said Carnes “went out of the way to attack him
>  personally.”
>
> However, Thompson said: “The court, at this time, does not envision a
> scenario in which there would be any physical confrontation between state
> and federal officials.”
>
> He added that he would rely on substantial fines against the state, perhaps
> starting as high as $5,000 per day and doubling after the first week, if
> Moore failed to oblige his ruling.
>
> Only if Moore and all other state officers failed to uphold the order would
> federal marshals take over the job.
>
> Some conservative legal scholars scoff at Hostettler’s legislative sleight
> of hand.
>
> “The spending clause does not authorize Congress to violate the
> Constitution,” said Ronald Rotunda, a law professor at George Mason
> University and Federalist Society member: “There is a broad power to the
> spending clause, but there are limits and this crosses it.”
>
> Noah Feldman, a law professor at New York University, predicted Hostettler’s
> amendment would have no practical effect.
>
> “If we think the courts went too far, are we going to say no money [to read
> defendants their] Miranda [rights]?” Feldman asked.
>
> He added the amendment is “totally out of keeping with the Constitution. It
> is incredibly radical. [Hostettler] … is using funding power to get power
> that legislature does not otherwise have. It’s a good attention-grabber.”
>
> Both scholars said federal marshals’ salaries would be paid in any event.
> Moreover, the amendment does not specify actions, such as holding Moore in
> contempt and incarcerating him, that fall beyond the appropriations process.
>
>
>
> --
> There are 10 types of people in the world -- those who know binary, and
> those who don't.
>
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