Some thoughts on the Moore amicus brief

I looked through the Roy Moore amicus brief that Reed Cartwright posted below. It makes a remarkable argument: that the evolution disclaimer could not possibly violate the Establishment Clause because “[a] sticker is not a ‘law,’” (p. 13), so it couldn’t possibly be a “law respecting an establishment of religion.” As far as those cases like Lemon v. Kurtzman</i>, 403 US 602 (1971), which hold that any state action which endorses a religious viewpoint is a violation of the Clause, those cases were wrong and ought to be overruled.

The argument that a sticker is not a law is the worst kind of lawyerly manipulation. Of course a sticker is not a law, but it is not the sticker that is being challenged in this case; it is the school board’s resolution requiring school officials to place the sticker on the textbooks. That resolution has the force of law. If the school board ordered teachers to tell all their students that real baptism requires total submersion and any person who just sprinkles is going to Hell, one might say that a teacher telling students that isn’t a law—but the school board’s orders have the force of law.

Moreover, the First Amendment’s literal text is not strictly relevant to this case, because, strictly speaking, the First Amendment doesn’t have anything to do with the states; it applies only to Congress. It is incorporated to the states by the Fourteenth Amendment, which declares that no person shall be deprived of liberty without due process of law. By the time the Fourteenth Amendment was ratified n 1868, the disestablishment principle was seen as an individual right: that is, the concept of “liberty” by 1868 included the right to be free from established religion. Depriving a person of that right by putting the government’s endorsement on a competing religious view is not for the public benefit, and therefore is just a mere act of force—which means, it deprives a person of liberty without due process of law. The Fourteenth Amendment does apply the bill of rights to the states, but as Akhil Reed Amar so brilliantly shows, it acts as a lens, not a window. Moore’s brief doesn’t understand this, and so it ends up making silly, hypercritical arguments. The question isn’t whether the “sticker” violates the First Amendment, but whether the school board, in placing the sticker on textbooks, has deprive people of their right to be free from religious establishments. Moore can certainly answer that question “no” if he wants to, but he shouldn’t pretend that it isn’t the real question.

Moore goes on to argue that the sticker also isn’t about religion, because religion is defined as “the duty we owe our Creator.” (p.19). But the Supreme Court has never actually defined “religion”—something that is extremely difficult to do. See Note, Toward a Constitutional Definition of Religion, 91 Harv. L. Rev. 1056, 1063 (1978); Stanley Ingber, Religion or Ideology: A Needed Clarification of the Religion Clauses, 41 Stan. L. Rev. 233 (1989). And Moore’s proffered definition would be worthless: a government declaration, for example, saying “America is a Christian country and Muslims ain’t welcome” would violate the Establishment Clause by any reasonable interpretation—but not by Moore’s.

The rest of the brief is full of Moore’s Patented Politico-Religious Grandstanding. He considers it “invidious discrimination” (p. 20) for the District Court to have recognized that the disclaimer was adopted at the behest of religious fundamentalists who refuse to believe evolution and insist that their children be shielded from it; he claims that removing the sticker means “banning God from the discussion of the creation of life,” (p.22-23). Most amusing is his claim that the sticker doesn’t violate the Georgia Constitution because it doesn’t give money from the public treasury in support of any religious group. Who, then, paid the school employees that put the stickers on the textbooks? Evidently Moore thinks they volunteered. More, he rests this argument on a 1922 decision, Wilkerson v. City of Rome, 152 Ga. 762 (1922) which held that it was constitutional to require bible reading and prayer every day in public school classrooms—a proposition that is, shall we say, not exactly the law today.

Yes, I know it’s a waste of time responding to such sophomoric arguments; Moore writes like a first year law student with a Lexis password and no time to bother with trying to learn the big picture of what’s legal and what’s not. I won’t say I agree with Judge Pryor’s rejection of the brief—but I certainly understand it.