Squeezing Lemon

On Monday, Sept. 29, the nine justices of the Supreme Court sat down to finish up their summer reading. But the so-called "summer list" is hardly a page-turner. It's a compendium of appeals filed over the summer recess-thousands of aggrieved litigants begging the nation's highest court for one final hearing.

If that makes for dry reading overall, at least one of the cases on the list boasts all the drama of a John Grisham bestseller. Roy Moore, the Alabama chief justice stripped of his robes after a tense standoff over the Ten Commandments, is now asking the Supreme Court for a hearing.

The ramifications go far beyond Mr. Moore's future on the bench, according to his attorney, Steve Melcher. "The bottom line is this: In this country, the federal courts have taken over. They're violating the constitution and the power given to them as the weakest branch of government. We're trying to hit this head-on.

"If they grant cert [agree to hear the case], we want to bring one issue only: Can the state acknowledge God under the First Amendment? The answer is a profound yes, historically, legally, and logically."

That's an argument for another day, however. Before Mr. Moore can make the case for God in government, he has to convince the justices that his case is worth hearing. What are his chances of success?

"About 1 percent," says John Eidsmoe, a legal consultant to Mr. Moore. Of the 15,000 to 20,000 appeals each year, the court places only 150 to 200 cases on its docket. Still, Mr. Moore's advisers believe they may have a better shot than the numbers alone would indicate. The nation's attention was riveted this summer by the drama played out in Montgomery. Hundreds of supporters streamed into the Alabama capital to hold rallies and prayer vigils while the clock ticked down on a federal court order to remove the 25-ton monument to the Ten Commandments.

The furor hardly died down once the monument was hauled out of view. A foam reproduction of the monument made its way from Alabama to Washington in a "Save the Commandments Caravan" last week, stopping all along the way for prayer rallies and press conferences. Supporters promise dozens of additional rallies across the country, and nearby Southern states are competing to house the banned monument.

The ongoing controversy might help put Mr. Moore's case on the Supreme Court radar, according to his advisers. "Our whole reason for taking this route was, number one, to draw the attention of the public to the Ten Commandments issue, and number two, to make the Supreme Court take notice," Mr. Eidsmoe told WORLD. "The Chief's feeling was that by not requesting a stay [of federal Judge Myron Thompson's order requiring the monument's removal], possibly this would cause the Supreme Court to take notice of this case and convince them this should be among the 1 percent that they choose."

The conflict aside, the meat of Mr. Moore's appeal involves the controversial legal doctrine known as the Lemon test. Named for a famous 1971 Supreme Court case, Lemon vs. Kurtzman, the multi-part legal test considers whether government actions have either the purpose or the effect of "establishing" religion. "While religion and government must interact at some points while coexisting in society, the concern here is that they do not so overlap and intertwine that people have difficulty differentiating between the two," according to the First Amendment Center, a think tank at Vanderbilt University.

The problem is that the courts themselves, in trying to apply the Lemon test, have trouble differentiating between the two. Both the 3rd Circuit and the 10th Circuit Courts of Appeals have upheld the constitutionality of Ten Commandments displays, Mr. Eidsmoe says, while the 7th and 11th Circuits have ruled against them. The 6th Circuit, meanwhile, has ruled first one way then the other in cases coming out of Tennessee and Kentucky.

"The Lemon test is in total disarray," Mr. Melcher insists. "It's created havoc among the circuits as to how to address Establishment Clause issues.... We believe our case presents an opportunity for the Supreme Court to address the absolute bankruptcy of Lemon."

It wouldn't be the first time the court had such an opportunity. Last year, for instance, the late Indiana Gov. Frank O'Bannon wanted to erect a seven-foot stone monument with the Ten Commandments, the Bill of Rights, and part of the state constitution on the grounds of the capitol in Indianapolis. The 7th Circuit objected, ruling that the monument "impermissibly links religion and law since the Bill of Rights and the 1851 Preamble are near the sacred text." Numerous state attorneys general, hoping for some definitive word on displaying the Commandments, joined with Gov. O'Bannon in urging the Supreme Court to review the appellate court's opinion. But in February 2002 the high court rejected the appeal, perpetuating the confusion over religious displays.

With Ten Commandments lawsuits currently pending in Utah, Arizona, Texas, Georgia, Montana, Washington, and North Dakota, the justices will almost certainly have to weigh in eventually. When they do, the unwieldy, unreliable Lemon test could well be scrapped. Justice Antonin Scalia has publicly blasted the test, likening it to a horror-movie zombie that "repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried."

Justice Scalia and others would like to drive a stake through the heart of Lemon once and for all, but no one is sure what sort of test the court might fashion to replace it. Rival standards-including the coercion test, the endorsement test, and the neutrality test-are sometimes applied in religious-liberty cases, but they have produced results almost as inconsistent as those the Lemon test has spawned.

So what happens if the court replaces the current test with one that further restricts religious liberties? "My response with a straight face is this: We're talking the truth, we're talking the Constitution, the fundamental concept of the acknowledgment of God," says Moore lawyer Steve Melcher. "When these courts come in and say, 'You've got to remove God from the picture,' don't you see what's happening? You remove God from government-give people the notion that they get their rights from government-look out.

"It comes right down to this: What a judge says is not the rule of law. If it were, we'd still have slavery. We'd still be a colony; there would be no Declaration of Independence.... If this case does nothing more than show what judicial tyranny is, then this is a great example. Chief Justice Moore upheld the law, and the judicial tyrants can't stand that."