Pryor opposes the genuine separation of church and state and has used his office to promote religion
Pryor is contemptuous of what he calls “the so-called wall of separation between church and state,” asserting that this doctrine — so essential to the preservation of freedom of conscience in this country — was created by the Supreme Court’s “errors of . . . case law.”55 According to Pryor, America is in a “time of moral and spiritual crisis,” a crisis that he blames in part on what he calls “the increasing secularization of our Country,” and for which he considers “[t]he primary catalyst” to be “the Supreme Court of the United States.”56 Pryor lambasted the Court: “In 1962, with its decision prohibiting prayer in public schools, the Supreme Court began building a wall that has increasingly excluded God and religion from our public life . . . In the years following the school prayer decision, it seems our government has lost God.”57
Pryor’s criticism of the Court reflects the mythology of the Religious Right. The Court’s 1962 decision to which Pryor referred, Engel v. Vitale, 370 U.S. 421, did not, as Pryor claimed, prohibit prayer in schools, but rather state-sponsored prayer. The right of students to engage in truly voluntary prayer in schools was not affected by that or any other decision of the Court.
The language of Pryor’s speeches indicates a disturbing lack of concern for religious minorities. For example, in 1997 he stated, “[t]he American experiment is not a theocracy and does not establish an official religion, but the Declaration of Independence and the Constitution of the United States are rooted in a Christian perspective of the nature of government and the nature of man. The challenge of the next millennium will be to preserve the American experiment by restoring its Christian perspective.” McGill-Toolen Speech (emphasis added). Accord, Baccalaureate Speech of Attorney General Bill Pryor to the 1997 Independent Methodist School Graduating Class.
Pryor concluded the remarks that he gave upon his official investiture as Attorney General in 1997 by stating: “With trust in God, and His Son, Jesus Christ, we will continue the American experiment of liberty in law.” Investiture of Bill Pryor as Attorney General (Jan. 2, 1997).
Pryor’s extreme views about church-state separation are particularly evident in his steadfast support — inside the courtroom and out — for the unconstitutional practices of Alabama Judge (now Chief Justice) Roy Moore. Moore is most famous for his efforts to use his judicial office to display the Ten Commandments in his courtroom when he was a trial judge and now in the rotunda of the state’s Judicial Building. When he was a trial court judge, Moore also “routinely invited Christian clergy to offer prayer at [the opening of jury] sessions; those prayers have routinely been Christian prayers.” Order, Alabama v. ACLU, No. CV-95-919-PR (Circuit Court of Montgomery County, Nov. 22, 1996), at 2.
A lawsuit was filed against Moore in federal court by several local taxpayers and residents, challenging both his sponsorship of sectarian prayers and his display of the Ten Commandments as violative of the Establishment Clause. That suit was ultimately dismissed on the ground that the plaintiffs lacked standing. Alabama Freethought Association v. Moore, 893 F. Supp. 1522 (N.D. Ala. 1995). While that suit was pending, however, Pryor, then the Deputy Attorney General, filed a lawsuit in the name of Alabama in state court asking the court to declare that Moore’s practices, including the prayer practice, were constitutional, a lawsuit that the state was under no obligation to file. Complaint for Declaratory Judgment, Alabama v. ACLU, No. CV-95-919-PR (Circuit Court of Montgomery County, Apr. 21, 1995). Pryor personally signed the Complaint. Id. at 7.
The state court rejected Pryor’s arguments, and held that a judge’s practice of officially sponsoring sectarian prayers before jury assemblies was unconstitutional. As the court explained, “[p]rayers conducted or arranged by a judge or officer of an Alabama court delivered to jurors summoned to perform their legal duty in an Alabama court constitute state-sponsored prayer. State-sponsored prayers that demonstrate a denominational preference are proscribed by the Establishment Clause of the United States Constitution.” Order, Alabama v. ACLU, No. CV-95-919-PR (Circuit Court of Montgomery County, Nov. 22, 1996), at 2.
Pryor appealed. The brief that he filed with the Alabama Supreme Court urging the court to overturn the trial court’s ruling not only illuminates the sectarian nature of Judge Moore’s prayer practice that Pryor voluntarily defended, but is another example of Pryor’s trying to push the law in an extreme direction. As Pryor’s own brief recounts, Judge Moore would typically open jury assemblies by stating that “we’re going to begin as we always do, with prayer;” he would then introduce the clergy member whom “I have with us today,” give the name of that person’s church, and ask the jurors to “please stand;” the prayer followed. Brief of the State of Alabama, Alabama v ACLU, Consolidated Case Nos. 1960927 et al., at 4 (Ala. Sup. Ct., Apr. 10, 1997). Pryor’s brief itself admits that “[t]o Judge Moore’s knowledge, each of the clergy who had delivered a prayer in his presence was a Christian. Some of the prayers had ended in Jesus’ or Christ’s name. . . . Moore did not recall having invited any Jewish, Muslim, or Jehovah’s Witness clergy, but explained, ‘[T]hese jurors are summoned from Etowah County are ninety-five percent Christians or persons who believe in God if they are not Christians.’” Id. at 8 (record citations omitted).58
That Pryor urged a court to uphold this practice as constitutional raises serious concerns about his view of the First Amendment. The very notion that a judge could lawfully sponsor prayers of a particular religious group because most of his audience was of the same faith has absolutely no basis in the Constitution and would in fact allow government officials to ignore the Establishment Clause by promoting a particular religion as long as their actions took place in front of a majority of co-religionists.
The Alabama Supreme Court did not rule on the merits of the case but instead dismissed the case as lacking any controversy because Pryor had named Judge Moore as a defendant, and Pryor and Moore were plainly in agreement as to the constitutionality of Moore’s practices. Alabama v. ACLU, 711 So.2d 952 (Ala. Sup. Ct. 1998). The court was extremely critical that the case had been brought: “We are convinced . . . that ‘the Office of the Attorney General [has] . . . sought to ‘use’ this Court in order to get an advisory ruling.’ . . . We will not, however, allow the judiciary of this state to become a political foil, or a sounding board for topics of contemporary interest.” Id. at 962. Even after being so castigated, and even though the result of the court’s dismissal of the case was to allow Moore to continue his practices, Pryor was so bent on having a court declare them constitutional that he asked the state Supreme Court to rehear the case and uphold Moore’s practices. The court refused .59
Pryor has tried to gain court approval of government-sponsored, captive audience prayer in other settings as well. In the case of Santa Fe Independent School District v. Doe, 520 U.S. 290 (2000), Pryor joined several other state attorneys general in filing an amicus curiae brief in the U.S. Supreme Court urging the Court to uphold a Texas school district’s policy of turning over the public address system to students before high school football games in order to allow a prayer to be delivered. Pryor’s brief asserted that the prayer practice should be upheld because there was no impermissible state action. See Brief on the Merits of Amici Curiae State of Texas, et al., Santa Fe Independent School District v. Doe, 1999 U.S. Briefs 62, *5 (Dec. 30, 1999). The Court rejected this argument and struck down the policy, explaining that “[t]hese invocations are authorized by government policy and take place on government property at government-sponsored school-related events. . . The delivery of [a religious] message — over the school’s public address system, by a speaker representing the student body, under the supervision of school faculty, and pursuant to a school policy that explicitly and implicitly encourages public prayer — is not properly characterized as ‘private’ speech.” 520 U.S. at 302, 310.
Pryor’s brief gives disturbingly short shrift to the rights of students and others in the audience who are attending a school-sponsored event and who do not desire to participate in prayer as the price of admission. In fact, casting the student-led prayers as free speech, Pryor’s brief contends that “[t]he First Amendment focuses on the rights of the speaker, not of the listener.” Brief on the Merits of Amici Curiae State of Texas, et al., Santa Fe Independent School District v. Doe, 1999 U.S. Briefs 62, *14, n.9. Such an argument is contrary to Supreme Court precedent. Indeed, citing its ruling in Lee v. Weisman, 505 U.S. 577 (1992), the Court reaffirmed that school officials may not put students and other citizens in the position of having to choose whether to attend a school-sponsored event or “risk facing a personally offensive religious ritual. . . The Constitution .. . demands that the school may not force this difficult choice upon these students for ‘it is a tenet of the First Amendment that the State cannot require one of its citizens to forfeit his or her rights and benefits as the price of resisting conformance to state-sponsored religious practice.’” Santa Fe Independent School District v. Doe, 530 U.S. at 312 (citation omitted).
In Stone v. Graham, 449 U.S. 39 (1980), the Supreme Court struck down a Kentucky law that required the Ten Commandments to be posted in all public school classrooms. In so ruling, the Court distinguished between displays of the Ten Commandments, such as these, that have the purpose or effect of promoting religion, and government use of the Ten Commandments in a secular, historic context. Despite this ruling, Pryor has been on a crusade to have the courts authorize government displays of the Ten Commandments in circumstances that clearly do not constitute a secular or historic display, but that plainly advance religion and are intended to do so. In his efforts, Pryor has disregarded the Court’s recognition that
[t]he Ten Commandments are undeniably a sacred text in the Jewish and Christian faiths, and no legislative recitation of a supposed secular purpose can blind us to that fact. The Commandments do not confine themselves to arguably secular matters, such an honoring one’s parents, killing or murder, adultery, stealing, false witness, and covetousness . . . . Rather, the first part of the Commandments concerns the religious duties of believers: worshipping the Lord God alone, avoiding idolatry, not using the Lord’s name in vain, and observing the Sabbath day.
Stone v. Graham, 449 U.S. at 41-42 (emphasis added).
Pryor has been critical of the Court’s ruling in Stone v. Graham, saying “personally I think it’s pretty hard and disingenuous to defend the court’s decision . . . unless you’re recognizing that children are this special group of citizens who have to be kept away from the dangerous message of religion.” Transcript, NPR “Justice Talking,” Religious Liberties: Moment of Silence Debate, as published in Engage, Vol. 3 (Aug. 2002).
In each of the cases discussed below in which Pryor has urged the courts to uphold government displays of the Ten Commandments, the courts have found that the particular displays promote religion. Nonetheless, Pryor has urged higher courts to approve them. In none of these cases did Alabama have any legal obligation to take a position, underscoring Pryor’s use of his office to promote his ideology. In fact, in one case, clergy in Alabama, including Christian clergy, have opposed the state’s position.
Pryor’s most publicized Ten Commandments effort has been in the context of his unwavering support for Judge Roy Moore. In addition to inviting Christian clergy to deliver prayers to jury assemblies when he was a state trial court judge, Moore also displayed alone on the wall of his courtroom behind his bench a hand-carved plaque of the Ten Commandments. This display was also challenged in the federal lawsuit discussed above, which was dismissed for lack of standing. In the lawsuit that Pryor filed in state court asking the court to declare Moore’s practice of sponsoring sectarian prayers in courtrooms before jurors to be constitutional — a lawsuit that Alabama was under no obligation to file — Pryor also asked the court to uphold Judge Moore’s display of the Ten Commandments. See Complaint for Declaratory Judgment, Alabama v. ACLU, No. CV-95-919-PR (Circuit Court of Montgomery County, Apr. 21, 1995).
After visiting Judge Moore’s courtroom and viewing his Ten Commandments display in its particular setting, the state judge held that this particular display, “hanging in the courtroom on the wall alone” behind Judge Moore’s bench where it could be seen “from any position in the courtroom [and] more prominently from the jury box,” was unconstitutional. Final Order, Alabama v. ACLU, No. CV-95-919-PR (Montgomery County Circuit Court, Feb. 10, 1997). The court found it “obvious that the sole purpose for the plaques hanging in the courtroom is such a fashion is ‘purely religious.’ In fact, Judge Moore . . . has unequivocally stated that the plaques are not in the courtroom for a historical, judicial or education purpose, but rather, and clearly to promote religion.” Id. at 2. The court ordered Moore to take down the display or incorporate it “in a larger display of non-religious and/or historical items.” Id. at 2. The court responded to those who had asked it “to save the Ten Commandments” that
the Ten Commandments are not in peril. They are neither stained, tarnished nor thrashed. They may be displayed in every church, synagogue, temple, mosque, home and storefront. They may be displayed in cars, on lawns, and in corporate boardrooms. Where this precious gift cannot and should not be displayed as an obvious religious text or to promote religion is on government property (particularly in a courtroom).
Id. at 3.
Moore made it plain that he would not comply with the court’s order to change his Ten Commandments display60, and then-Governor Fob James said that he would “‘use the National Guard and state troopers to prevent their removal.’” Jessica Saunders, “Judge: Ten Commandments Display Must Be Changed Or Removed,” Associated Press (Feb. 10, 1997).
Pryor defended Moore in every available forum. On the Today Show, Pryor was asked what was wrong with the state court’s suggestion that Moore “simply move those tablets to another wall in his courtroom, near some other historical objects, such as the Declaration of Independence . . .” Transcript, Today Show (Feb. 16, 1997). Pryor’s response was that “the Ten Commandments are special, and they deserve a special place on the wall in his courtroom.” Id. Pryor attempted to trivialize the genuine First Amendment issues at stake and ignored Supreme Court precedent by claiming that the ACLU was “asking one circuit judge to be the interior decorator of another judge’s courtroom.” Id.
Also on the Today Show, Pryor was reminded of Governor James’s threat to use the National Guard if necessary to preserve Judge Moore’s display and Judge Moore’s refusal to abide by the court’s order. Transcript, Today Show (Feb. 16, 1997). Pryor was asked, “Don’t those two positions conjure up images of — of Lester Maddox, George Wallace and — and Little Rock schools and tend to undermine respect for the — the rule of law?” Id. Disturbingly, Pryor did not respond by stating that of course a court’s order must be complied with unless and until overturned by a higher court. Instead, he replied that “George Wallace defended an immoral position. I think Judge James — Governor James and Judge Moore are on the right position in this case.” Id.
Pryor was also one of the speakers at a large rally held on April 12, 1997 at the state Capitol in Birmingham to support Moore, a rally sponsored by such groups as the Christian Coalition and American Family Association.61 Reuters described the rally as follows:
[t]housands of people, including two of Alabama’s highest elected officials [Pryor and Governor James], protested the separation of church and state . . . condemning the Supreme Court for keeping religion out of public schools, courtrooms, and other government venues.
Amy Hetzner, “Thousands Rally Against U.S. Supreme Court in Alabama,” Reuters News (Apr. 12, 1997). Pryor and others reportedly used the occasion not only to support Moore’s unconstitutional practices but also to advance other aspects of their right-wing ideology: “While the rally’s invective was aimed mainly at the Supreme Court and the American Civil Liberties Union, its rhetoric at times veered into a condemnation of legal abortion and gay people.” Id. Pryor in particular “condemned the 1973 Roe vs. Wade Supreme Court decision that legalized abortion, telling his audience that he became a lawyer to fight the ACLU. ‘God has chosen, through his son Jesus Christ, this time and this place for all Christians . . . to save our country and save our courts,’ he announced.” Id.
Moore rode his newfound fame to election as Chief Justice of Alabama in November 2000; his campaign referred to him as the “Ten Commandments Judge.”62 The next summer, “during the night and without forewarning his fellow Supreme Court justices,”63 but while being filmed by Coral Ridge Ministries, “an evangelical Christian media outreach organization,”64 Moore installed a nearly three ton granite monument of the Ten Commandments in the rotunda of the Alabama State Judicial Building, which houses the state Supreme Court, the courts of appeals, and other state offices.65 Designed by Moore himself, the monument, according to Moore, reflects “‘the sovereignty of God over the affairs of men.’”66 As a federal court subsequently found, “[b]y God, the Chief Justice specifically meant the Judeo-Christian God of the Holy Bible and not the God of any other religion.”67
Moore placed the monument “directly across from the main entrance to the Judicial Building . . . A person entering the Judicial Building through its main entrance, and looking across the large open area of the rotunda, will see the monument immediately. . . The Chief Justice chose to display the monument in this location so that visitors to the Alabama Supreme Court would see the monument. While not in its center, the monument is the centerpiece of the rotunda.” 229 F. Supp. 2d at 1294.
Weighing 5,280 pounds, Moore’s Ten Commandments monument is approximately three feet wide, three feet deep, and four feet tall. Id. “The top of the monument is carved as two tablets with rounded tops . . . The tablets are engraved with the Ten Commandments as excerpted from the Book of Exodus in the King James Bible. Due to the slope of the monument’s top and the religious appearance of the tablets, the tablets call to mind an open Bible resting on a lectern.” Id. at 1294-95. Below the Ten Commandments, on the sides of the monument, are quotations from secular sources referring to God, id., “edited so as to emphasize the importance of religion and the sovereignty of God in our society . . . .” Id. at 1303.
Once again, a lawsuit was filed by individual citizens asserting that Moore had violated the Establishment Clause. Once again, Pryor rushed to Moore’s defense, appointing three private lawyers as Deputy Attorneys General of Alabama to represent Moore. Stan Bailey, “Pryor Supports Moore Defense,” Birmingham Daily News (Nov. 3, 2001). Pryor told the media, “‘I look forward to providing a vigorous defense . . . .” Id.
The federal court disagreed completely with Pryor. In a ruling issued this past November, the court recognized, as did the Supreme Court in Stone v. Graham, that the Ten Commandments have secular aspects. However, looking at the facts of this particular case, the court found that Moore’s Ten Commandments monument violated the Establishment Clause because Moore’s “fundamental, if not sole, purpose in displaying the monument was non-secular” and “the monument’s primary effect advances religion.” Glassroth v. Moore, 229 F. Supp. 2d 1290, 1299 (M.D. Ala. 2002). Consistent with its recognition that the Ten Commandments have secular aspects, the court noted that it was not holding “that it is improper in all instances to display the Ten Commandments in government buildings . . .” 229 F. Supp. 2d at 1293.
In its ruling, the court noted the specific factual aspects of Moore’s monument, as well as statements Moore had made confirming the religious purpose of the monument. For example, the court noted that Moore had emphasized that “the secular quotations were placed on the sides of the monument, rather than on its top, because these statements were the words of mere men and could not be placed on the same plane as the Word of God.” 229 F. Supp. 2d at 1295. In fact, Moore rejected the request made by a state legislator that another monument be placed in the rotunda containing Martin Luther King, Jr.’s “I Have a Dream” speech, stating “‘The placement of a speech of any man alongside the revealed law of God would tend in consequence to diminish the very purpose of the Ten Commandments monument.” 229 F. Supp. 2d at 1297.
The court found that “[n]o part of the monument itself, nor sign, nor other decoration in the rotunda, in any way emphasizes the potentially secular nature of the Commandments.” Id. at 1303. “No other Ten Commandments display presents such an extreme case of religious acknowledgment, endorsement, and even proselytization.” Id. at 1308. Moore appealed, and the Eleventh Circuit heard oral argument in the case on June 4, 2003.
More than 40 Alabama clergy and religious leaders, including clergy and leaders of various Christian denominations, joined members of the national religious community to file an amicus curiae brief in the Eleventh Circuit urging that court to uphold the district court’s ruling. Brief of Amici Curiae Alabama Clergy, et al., Glassroth v. Moore, No. 02-16708-D, 02-16949-D (11th Cir.). As these amici explain, Moore’s “display of the Ten Commandments in the State Judicial Building flouts the Establishment Clause’s command to respect the freedom of conscience because it endorses the Judeo-Christian religious tradition to the exclusion of all others.” Id. at 10.68
The brief filed in the Eleventh Circuit in support of Moore by one of the Alabama Deputy Attorneys General appointed by Pryor is astonishing in its arguments and in its failure to recognize settled Supreme Court precedent. See Brief for Appellant, Glassroth v. Moore, No. 02-16708-DD, 02-16949-DD (11th Cir.). For example, the brief makes the remarkable assertion that because Moore’s Ten Commandments monument is not a “law,” the Establishment Clause does not apply. Id. at 17, et seq. This is contrary to decades of Supreme Court precedent holding that the official practices and actions of government representatives must comply with the Establishment Clause. Perhaps most astonishing, the brief argues that because the “police power” is one of the powers reserved to the states by the Tenth Amendment, Moore had the right to install the Ten Commandments monument “to restore the moral foundation of law to the State of Alabama.” Id. at 48. The contention that the Establishment Clause has no application to state officials if they are acting in the name of “morality” has absolutely no basis in the Constitution or Supreme Court precedent and would destroy the separation of church and state insofar as state governments are concerned.
In addition to supporting Roy Moore’s efforts in Alabama, Pryor has used his office to file amicus curiae briefs in the Supreme Court in two different Ten Commandments cases arising in other states, urging the Court to hear appeals from decisions of the federal appellate courts that have barred public entities from maintaining religious displays of the Ten Commandments. Brief for the States of Alabama, et al. in Support of Petition for a Writ of Certiorari, City of Elkhart v. Books, No. 00-1407 (Apr. 12, 2001); Brief of the States of Texas, Alabama, et al. as Amici Curiae in Support of Petitioner, Russ v. Adland, No. 02-1241 (Mar. 27, 2003).69 In each instance, the Court declined to hear the case, allowing the rulings to stand.70
The positions that Pryor has taken in these and other cases are not only extreme, but the language with which he argues them often trivializes the important concerns and legal rights of the litigants involved. For example, in City of Elkart, which involved a Ten Commandments monument donated to a municipality in 1958 by the Fraternal Order of Eagles, hardly a historic artifact, Pryor’s amicus brief, filed on behalf of Alabama and several other states, claimed that there were “disturbing similarities” between the lawsuit seeking the monument’s removal and the Taliban’s destruction of the historic Buddha monuments in Afghanistan dating from the Third and Fifth Centuries.7` Pryor’s News Release announcing the filing of his brief was even more shrill: “Just as these ancient statues of Buddha were declared to be ‘shrines of infidels’ and were demolished without regard to their historic and cultural value, so do plaintiffs in cases such as this seek to obliterate any artistic or historic representation with religious references. What happened in Afghanistan was a terrible waste, and I hope the Supreme Court will protect us from losing our own great monuments.”72 Pryor urged the Court to hear the case “before the federal courts are drawn further into a campaign of secular iconoclasm to cleanse public buildings and grounds of religious references.” Alabama Amicus Brief in Elkhart, at 11 (emphasis omitted).
Someone who has such fixed and contemptuous views of other Americans who believe strongly in church-state separation and who find government promotion of sectarian beliefs problematic simply cannot be expected to have an open mind when cases raising these very same issues come before him as a judge.