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Elizabeth Hubertz doesn’t remember much about the first time she appeared before Alabama state court Judge Roy Moore sometime in 1994. A brand-new lawyer, fresh from clerking for federal District Judge Ira DeMent in Montgomery, Ala., she does remember the hand-carved wooden plaque bearing the Ten Commandments that was affixed to the courtroom wall. “I thought, ‘That can’t be legal,’ ” she says. Little did she know at the time that she, DeMent and Moore would soon be neck-deep in a series of bitter conflicts in the courts, the press and the state government over the constitutional place of prayer in Alabama’s public life. All this in addition to her day job. In 1995, cooperating with the American Civil Liberties Union, Hubertz, working on insurance litigation by day, took on the Ten Commandments case, as well as a challenge to a 1993 state law authorizing voluntary school prayer. “I did it, I think, because nobody else wanted to,” she says. Little wonder. She and other lawyers involved in the cases were continually vilified by conservative Christians and politicians. And the cases ended up taking more work than she ever imagined. In the Ten Commandments case, the ACLU claimed that, in addition to posting the Ten Commandments, Moore asked local clergy to offer prayers in his Gadsden, Ala., courtroom. Two related lawsuits involving Moore, litigated in state and federal court, made him a conservative star. Former Governor Fob James threatened to defend Moore’s plaque with the National Guard, if necessary. And in the spring of 1997, thousands gathered at a “Save the Commandments” rally (called “God-stock ’97″ by some who took it less seriously) at the state capitol. James, Attorney General Bill Pryor and Christian Coalition head Ralph Reed railed against the ACLU. At about the same time, Hubertz represented Michael Chandler, an assistant principal at a school in Alabama’s DeKalb County, who had complained to the ACLU about school-sponsored religious activities, including prayers read over the school public address system, prayer at football games, and the distribution of Bibles in the school. “I thought I’d just find an attorney and pay their fees,” he says. But although he talked to 25 or 30 local lawyers, he says, no one wanted to take his case. “I can’t express to Liz how grateful I am that she did this.” At issue was a 1993 Alabama law that permits “non-sectarian, non-proselytizing student-initiated voluntary prayer, invocation and/or benedictions” during school-related events. The law was the fourth attempt in 15 years by Alabama lawmakers to push the limits of constitutionally acceptable in-school prayer. In 1997, DeMent ruled against the state, in an unusually detailed injunction that distinguished between voluntary, individual prayer and improper, school-sponsored prayer. DeMent’s opinion was reversed in part by the 11th U.S. Circuit Court of Appeals, but in June, the U.S. Supreme Court vacated the case, sending it back for the 11th Circuit to reconsider in light of the court’s ruling in Santa Fe Independent School District v. Doe, a Texas school prayer case that had just been decided. The 11th Circuit declined to change its opinion, setting the case up for a possible return trip to the high court next year. Hubertz also represented Chandler on the successful appeal of an employment case, claiming he had been passed over for principal because of his opinions. (That case was settled for about $120,000, including minimal attorney fees for Hubertz.) ‘A LITTLE GOOFY’ In the Chandler case, James wrote a 34-page letter urging DeMent to defy Supreme Court precedent and arguing that the Bill of Rights does not apply to the states. The letter, which the Birmingham News editorial page labeled “well-researched, bitter and a little goofy,” put many in mind of states’ rights arguments used to defend official racism years before. (A number of conservative legal experts dismissed James’ arguments, including Attorney General Pryor, who wrote in a brief that the governor’s views “do not state the legal position of the state of Alabama.”) Judge Moore even got into the act in the Chandler case, attempting in his home county, as a state court judge, to enjoin enforcement of DeMent’s federal order. Everyone involved in challenging the school prayer law has stories of ugly letters and incidents. “I’ve got a box of hate mail as big as a case of beer bottles,” says DeMent. Alabamians circulated petitions calling for his impeachment. A lunchroom full of students would stand and pray whenever Chandler’s son Jesse came in to eat. Chandler’s wife, a first-grade teacher, would find Bible verses and notes posted on her door. She took early retirement to escape the tense atmosphere. Hubertz’s co-counsel, Pamela Sumners, recalls finding dead rats on her car. “I really do believe that sometimes the amount of opposition tells you you’re doing the right thing,” says Hubertz. When firms at which she worked required her to withdraw from public work on the cases, she paid thousands in litigation expenses out of her own pocket and helped support Sumners financially while Sumners worked on the cases full-time. All the while, she helped ghost-write briefs in her “spare time,” which occasionally meant that she did not sleep for days. “I was very tired for about five years,” she says, laughing. Hubertz, who earned a masters’ degree in English before entering law school, says, “I became a lawyer because I wanted to earn some money. But something happened to me in Alabama.” She says that she was first exposed to civil liberties cases as a clerk for DeMent. Hubertz was nominated for the Pro Bono Award by her client, Chandler, and Sumners, a 1991 University of Virginia law school classmate. After graduation, the two moved to Alabama, where both had federal district court clerkships. Sumners, the more outspoken of the two lawyers, says that she was more often quoted in the newspapers and that Hubertz’s less public role in the cases has been somewhat overlooked. This summer, the 35-year-old Hubertz left Alabama and took a job at a Chicago firm, Robinson, Curley & Clayton. She says that her new firm has a strong commitment to pro bono work, as evidenced by partner Fay Clayton, who has represented the National Organization for Women in a racketeering lawsuit against anti-abortion activists that began in 1986. Hubertz says her practice there is about half insurance, half civil rights cases. This summer, she wrote an amicus brief in an unrelated U.S. Supreme Court case, as well as appellate briefs in the Chandler case, all the while studying to take the Illinois bar exam. In June, Sumners began work in Chicago as director of the Gay and Lesbian Rights/AIDS and Civil Liberties projects for the Illinois ACLU. The two lawsuits against Judge Moore were dismissed for lack of standing. But in the November election, Moore capitalized on the notoriety he gained from his Ten Commandments stance, winning a seat as the chief justice of Alabama. He has vowed to bring his plaque with him when he takes the seat in January. If so, Hubertz expects that a lawsuit will follow close behind.

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