Last week Alabama’s own Chief Justice Roy Moore got some unexpected encouragement in his battle to keep a 2.5-ton Ten Commandments monument on state property without permission.
In early July, the 11th U.S. Circuit Court of Appeals ruled that Moore’s monument was a unconstitutional violation of the separation of church and state and had to go. Moore vowed to appeal to the Supreme Court. While a couple conservative ministers tried to recruit protesters to block the removal, the US House of Representatives unexpectedly entered the fray. In a 260-161 vote, the House approved an amendment to a Commerce, Justice, State and Judiciary spending bill. The amendment by Rep. John Hostettler (R-Indiana) prevents the use of federal funds to carry out the removal. His intent was to prevent federal marshals from enforcing the court’s order. Six of the seven members of the Alabama house delegation supported the measure. Artur Davis of Birmingham was the lone dissenter.
"I felt, frankly, that it was outrageous, in that it would prevent the U.S. Marshals Office from carrying out a court order," Davis said Thursday. "In Alabama, unfortunately, we have a history of a governor 40 years ago who stood in the schoolhouse door in defiance of the federal courts. The last thing we should do is sanction not following a court order. It would set us back 40 years."
Ayesha Khan of Americans United for Separation of Church and State, one of three organizations that sued Moore over the monument, said the amendment "shows profound disrespect for the Constitution.
"You'd think the House would have more pressing matters than subverting the Constitution," Khan said.
Rhonda Brownstein, legal director of the Southern Poverty Law Center in Montgomery, another plaintiff in the case, said Hostettler's action was little more than a ploy to win applause from religious conservatives.
"If this legislation passes, I doubt it would stand up in court," Brownstein said. "It sounds to me like nothing more than political grandstanding by a right-wing politician."
Though the amendment is clearly political grandstanding, it represents a dangerous challenge to the principal of the separation of powers. Any attempt by the congress to override court decisions with which it does not agree brings forth echoes of some of the most divisive battles of American history, from nullification in the early nineteenth century to civil rights in the late twentieth. Hostettler and those who voted for his amendment show their ignorance of American history and their dangerous willingness to cast aside constitutional principles for the sake of a few votes.