Brief filed in defense of Alabama Chief Justice Roy S. Moore
Brief filed in defense of prayer before meetings of County Board
January 4, 2017
Moore v. Alabama Judicial Inquiry Commission (read brief here)
Lund v. Rowan County, NC (read brief here)
We were pleased that, during the Christmas Season, our firm had the opportunity to file amicus curiae briefs in two important cases – one in defense of
the illegal removal of the Chief Justice of Alabama that was motivated by those demanding the judicial imposition of same-sex marriage on the people,
and the other in support of public prayer at North Carolina county board meetings.
Moore v. Alabama Judicial Inquiry Commission
Under the Constitution of the State of Alabama, a panel of judges, lawyers, and others has the power to remove an elected Justice of the Alabama Supreme
Court. For the second time in little more than a decade, the Alabama Judicial Inquiry Commission exercised that power to remove Chief Justice Roy Moore.
Actually, Chief Justice Roy Moore was not technically "removed" from office, because that sanction may only be imposed if the Commission acts unanimously.
Unable to obtain a unanimous vote, the Commission rather suspended him from office for the balance of his term of office, without pay. (To us, that
suspension sounded a great deal like removal from office.)
On December 7, 2016, we filed an amicus brief in the Alabama Supreme Court, in defense of the Chief Justice, in Moore v. Alabama Judicial Inquiry
Commission.
The charges against Chief Justice Moore stemmed from two acts on his part. First, in the aftermath of the Obergefell decision creating a constitutional
right to gay marriage, there was great confusion about its implementation. In response, Chief Justice Moore issued an Administrative Order simply
advising the probate judges of Alabama that the Obergefell decision did not change the Alabama Supreme Court's previous decision upholding the Alabama
Constitution and the statutes of Alabama banning same-sex marriage, because Alabama was not a party to the Obergefell case.
Second, Chief Justice Moore was charged with "refusal to recuse" by joining an unanimous order of dismissal of a pending challenge to the Alabama
Constitution's provision regarding the sanctity of marriage. Since the vote was unanimous, whether or not he participated was of no real consequence,
but it was one of the two bases for his removal. His position to participate in that dismissal was well supported by Alabama law, but the forces
against him, apparently coordinated by the alt-left Southern Poverty Law Center, used it anyway.
In response, our brief attacked the concept of "Judicial Supremacy." This is the distinctly unconstitutional notion that decisions of the U.S. Supreme
Court must be viewed as being above the constitutional text, and constitute the Supreme Law of the Land. Our brief argued that the Supreme Court's
Obergefell decision was not a judicial decision, but rather a lawless act of political will.
Our brief also attacked Obergefell as a violation of "Natural Law," making it not just bad law, but, as Blackstone said, "not law at all."
Chief Justice Moore's "removal" from office stemmed from the politicization of judicial ethics canons, which were never designed to be used to
delegitimize any well-established school of constitutional scholarship.
Lund v. Rowan County
Our second amicus brief was filed on December 22, 2016, in the U.S. Court of Appeals for the Fourth Circuit, in Lund v. Rowan County.
The Rowan County, North Carolina Board of Commissioners begins each of its sessions with a prayer. Predictably, the plaintiffs (the ACLU and others)
were especially "offended" to hear Jesus' name mentioned during a county board meeting, and brought suit claiming the prayer was an unconstitutional
establishment of religion under the First Amendment.
In September 2016, a split three-judge panel of the Fourth Circuit initially upheld the county's practice of prayer, based on the U.S. Supreme Court's
2014 decision in Town of Greece v. Galloway, which itself had upheld legislative prayer. However, the Fourth Circuit then granted a petition for
rehearing en banc, and thereafter the full court reconsidered the case. Our brief was filed at this en banc rehearing stage.
The major constitutional theme of our brief was to urge the court to define "religion" as it appears in the First Amendment. After all, we pointed out,
how can the court decide whether legislative prayer is an establishment of religion if the court does not know or care what religion means? As we
demonstrated in our brief, religion is a jurisdictional term dividing those matters that belong exclusively to God outside the enforcement of the State.
In our brief, we argued that the subjective feelings of those who happen to hear a prayer do not cause the public prayer by government officials to
be transformed into a prohibited "establishment" of religion. On the contrary, the main purpose of the Establishment Clause is a jurisdictional one
to prevent the State from encroaching into matters of the church, such as compelling adherence to a particular faith – something that clearly did not
occur here.
Contrary to the ACLU's claims, Rowan County's prayers did not create a "coercive environment," because there was no attempt to convert the audience,
compel participation, or proselytize. Instead, the commissioners simply invoked God's name in the county's business, and asked for God's help and
protection in government matters. According to the original meaning of the constitutional text and American history, this is clearly an acceptable
form of legislative prayer, falling squarely under the protection of the U.S. Supreme Court's Town of Greece opinion and the historic definition of
religion that governs the relationship between church and state.
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