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A federal appeals panel in Montgomery, Ala., on Wednesday sharply tested the right of Alabama’s Supreme Court chief justice to keep a two-ton Ten Commandments monument in the state judicial building. One judge on the 11th U.S. Circuit Court of Appeals said if the panel accepted an argument made by Alabama Chief Justice Roy S. Moore, courthouses around the state could be decorated with murals depicting the life and death of Jesus Christ and the words “What Would Jesus Do?” inscribed above the benches. “Its implications are staggering,” Judge Edward E. Carnes said of Moore’s argument. Moore’s lawyer, Herbert W. Titus, defended his contention that the monument, a 5,280-pound engraved granite block, did not violate the First Amendment of the U.S. Constitution because the amendment bans only laws “respecting an establishment of religion.” Like the Ten Commandments monument designed by Moore, Titus said, the decorations imagined by Carnes could withstand constitutional scrutiny because the First Amendment deals only with “rules of conduct,” not decorations. The exchange between Titus and Carnes was the clearest hint that the three-member panel may uphold last year’s ruling by a federal judge that the Ten Commandments monument violated the First Amendment and should be removed from the judicial building. But as with many oral arguments, the judges’ comments gave only glimpses into their thinking about the case, making a firm prediction of their decision impossible. Judge Richard W. Story, a U.S. District Judge from Atlanta assigned to sit on the 11th Circuit panel, said nothing during the 45-minute oral argument. Chief Judge J.L. Edmondson, who last week voted with a panel that upheld the use of a Ten Commandments depiction on a local court seal, poked at both sides’ arguments, at one point saying his interest was “academic.” During Titus’ argument, Edmondson said the court was bound by the Supreme Court’s 1971 decision in Lemon v. Kurtzman, 403 U.S. 602, despite his own doubts in that decision. The case held that government actions are unconstitutional if they lack a nonreligious purpose, primarily advance or inhibit religion or excessively entangle government with religion. Edmondson added that, in his view, a 1983 Supreme Court case upholding the right of the Nebraska Legislature to open its sessions with a prayer by its chaplain exempted historical religious practices from the so-called Lemon test. But when Titus cited the Nebraska case in support of Moore’s cause, Edmondson said, “I don’t think that’s going to work out today.” JUDGE CHALLENGES CASE’S STANDING Later, Edmondson questioned whether the lawyers who sued Moore had proper standing to bring their case. The plaintiffs, three lawyers whose practices regularly require them to come to the Alabama judicial building, claimed that the monument made them feel like “outsiders” because they did not share Moore’s religious beliefs. Edmondson said he saw how someone could bring an Establishment Clause challenge if he were offended by a monument in a public park, the purpose of which is for people to enjoy themselves. “I’m not sure how much anyone should enjoy going to the courthouse,” Edmondson added, suggesting that lawyers were “grown people” who might be able to stand some discomfort. Ayesha N. Khan, a lawyer with Americans United for Separation of Church and State, noted that in other Establishment Clause cases, courts had allowed plaintiffs to challenge less concrete symbols of religion, such as a county seal that included the word “Christianity.” More specifically, Khan added, one of the plaintiffs had grown up as an orphan and lived in foster homes where parents aggressively proselytized their religious beliefs. The Ten Commandments monument, Khan said, reminded the plaintiff of having religion “pushed down her throat.” Edmondson responded that he suspected the plaintiff’s reaction “was so extreme as to deprive herself of standing.” When Titus returned to the podium for rebuttal, he tried to push the lack of standing argument, saying the plaintiffs had not been deprived of any liberty interest just because they felt uncomfortable because they disagreed with a government policy. But by this time Edmondson sounded unsatisfied with the standing argument, telling Titus, “you’re going to have to tell me something else.” FIGHTING FOR ‘MORAL FOUNDATION’ Moore’s fight to display the Ten Commandments in courthouses, which started when he was a trial judge, has made him one of Alabama’s most popular political figures. Running as the “Ten Commandments judge,” he won a race for chief justice in 2000. In August 2001, he placed his monument in the judicial building to depict “the moral foundation of law” and its source, God. According to court documents, the monument occupies 36 cubic feet. Below the engraving of the Ten Commandments, as written in the King James Bible, are 14 quotations that tie God to government, such as the motto on U.S. currency — “In God We Trust” — and a reference in the Declaration of Independence to “Laws of nature and of nature’s God.” The 11th Circuit had prepared for demonstrations and a large crowd. The first spectator to line up for one of the 108 public seats was John Aman, a newsletter writer for Coral Ridge Ministries, an evangelical group that videotaped the installation of the monument and has raised $350,000 for Moore’s legal defense. Not knowing how many people to expect, Aman said he arrived at 5 a.m. Like many of the 100 or so other spectators who arrived later, Aman wore a gold lapel pin depicting the Ten Commandments. The second member of the public to arrive was Larry Darby, head of the Alabama chapter of the American Atheists society. He showed up around 6:30 a.m. He pointed out that Moore had refused his group’s request to put up the symbol of an atom in the judicial building. After the argument, Moore noted that no one had brought a case against the statue of the Greek god of justice, Themis, which sits outside the federal courthouse in Montgomery. Moore wouldn’t comment on what he would do with the monument if he loses the case. But he added if the 11th Circuit ruled against him, “Every mention of God will be stricken from public life.”

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