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Ten Commandments Case Heads to D.C.

By GINA HOLLAND

The Guardian, Washington, D.C., Aug. 15, 2003

The Supreme Court was urged Friday to block the removal of a Ten Commandments monument from an Alabama court, part of an unusual legal strategy by the state's defiant top judge. Alabama Supreme Court Chief Justice Roy Moore has vowed to ignore a federal court order to move the 5,300-pound granite monument from the state judicial building. A federal judge ruled that the monument violates the Constitution's ban on government promotion of religion and must be removed by next week.

Moore's lawyers, in an extraordinary appeal at the Supreme Court, were challenging the judge's authority to tell Moore, and other state officials, what to do. Moore 'has sworn an oath to uphold the Constitution and here's a judge's opinion that tells him he must do something that is contrary to his oath,' said Moore's attorney, Herbert Titus. Titus said the paperwork was filed Friday. It was unclear when it would be processed and reviewed by the justices, who are on their summer break. 'I don't think the Supreme Court would touch this with a 10-foot pole,' said Ayesha Khan, legal director of Americans United for Separation of Church and State, one of the groups that sued after Moore moved the monument into the court building in the middle of the night in 2001.

The case brings yet another church-state controversy to the nation's high court. Justices have already been asked to decide in their next session if the Pledge of Allegiance should be barred from public schools because of the phrase 'under God.' In 1980, the Supreme Court banned the Ten Commandments from classroom walls in public schools, but justices have not given a broad ruling on the constitutionality of indoor and outdoor government displays. The court has a Ten Commandments depiction in its own courtroom. In the Alabama case, a panel of the 11th U.S. Circuit Court of Appeals ruled against Moore, who has said that the Ten Commandments represent the moral foundation of American law.

Moore also plans to appeal that ruling to the Supreme Court, Titus said, and he may request an emergency stay of the deadline to remove the monument. The unusual filing involves a type of appeal known as a writ of mandamus or writ of prohibition. They are rarely used and even more rarely successful. Moore challenged the authority of U.S. District Judge Myron Thompson of Montgomery, Alabama, who had said fines of about $5,000 a day could be imposed against the state if the monument were not removed by next Wednesday from the judicial building rotunda.

Washington lawyer Mark Perry, an expert in Supreme Court rules and former court law clerk, said such appeals have been successful only about 10 times in the past century. Christopher Eisgruber, a law professor at Princeton University who also clerked at the high court, predicted that Moore will have a tough time winning. 'The Supreme Court is never sympathetic to the idea that mandates of federal courts can be ignored,' he said. 'I think the justices will be bothered by this. Despite their political disagreements with one another, there's a lot of agreement on the court for the need for the rule of law.'