Petition for Writ of Certiorari — In re James

Supreme Court. U.S.

\ Pik. &.9

197178 0 MAY 1-18

OFEICE OF JHE CLERY

Ne”

No.

In The

Supreme Court of the United States

October Term, 1997

IN RE: FOB JAMES, JR., GOVERNOR OF ALABAMA;

SCHOOL BOARD OF DEKALB COUNTY, ALABAMA,

Petitioners.

On Petition For A Writ Of Mandamus

To The United States District Court For The

Middle District Of Alabama

PETITION FOR A WRIT OF MANDAMUS

¢

Rosert B. FRENCH Forrest H. James III

Attorney for DeKalb County Attorney of Record for

School Board Governor Fob James, Jr.

P.O. Box 680596 300 Vestavia Parkway,

Ft. Payne, AL 35967 Suite 2300

(205) 845-2250 Birmingham, AL 35216

(205) 823-8751

Counsel for Petitioners

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

IS IT THE “PEOPLE OF THE UNITED STATES,” OR

THE JUSTICES OF THIS COURT, WHO HAVE CON-

STITUTIONAL AUTHORITY TO DECIDE THE

“FUNDAMENTAL PRINCIPLES OF OUR SOCIETY?”

SHOULD NOT THE MEMBERS OF THIS COURT,

CONSISTENT WITH THEIR OATHS OF OFFICE TO

THE CONSTITUTION, UPHOLD THE PEOPLES’

“FUNDAMENTAL PRINCIPLE” DIFFUSING

AUTHORITY TO DECIDE CHURCH-STATE ISSUES

AMONG THE MANY JURISDICTIONS OF THE

STATES RATHER THAN CENTRALIZING THAT

AUTHORITY IN A FEDERAL JURISDICTION?

HAVE THE “PEOPLE OF THE UNITED STATES”,

THROUGH THEIR MORAL FAILINGS OR OTHER-

WISE, FORFEITED THEIR RIGHT TO DECIDE THE

“FUNDAMENTAL PRINCIPLES” OF GOVERNMENT

INTO THE HANDS OF THIS SELF-AVOWED “DIS-

INTERESTED AND DETACHED” COURT?

il

LIST OF PARTIES

The parties to the proceeding in the District Court for

the Middle District of Alabama and in the United States

Court of Appeals for the Eleventh Circuit are as follows:

Plaintiffs-Appellees

Jesse Chandler (by and through his father and next

friend, Michael Chandler)

Michael Chandler

Defendants-Appellants

Alabama State Board of Education

Dr. Stephanie Bell (Member, Alabama State Board of Edu-

cation)

Dot D. Burke (Member, DeKalb County Board of Educa-

tion)

Greg Buttram (Member DeKalb County Board of Educa-

tion)

David Byers (Member, Alabama State Board of Educa-

tion)

Bradley Byrne (Member, Alabama State Board of Educa-

tion)

Mary Jane Caylor (Member, Alabama State Board of Edu-

cation)

Honorable Ira DeMent (United States District Judge)

Dr. Ethel Hall (Member, Alabama State Board of Educa-

tion)

EA A CT TERT RIN. ES ar 8 a wie ane

ee Oe q

ili

LIST OF PARTIES — Continued

G. J. “Dutch” Higginbotham (Member, Alabama State

Board of Education)

Willard A. Israel (former Member, DeKalb County Board

of Education)

Forrest H. “Fob” James, Jr. (Governor, State of Alabama)

Tommie Johnson (Member, DeKalb County Board of Edu-

cation)

Richard R. Land (Superintendent, DeKalb County Board

of Education)

Office of the Attorney General, State of Alabama

Weldon Parrish (former Superintendent, DeKalb County

Board of Education)

William H. Pryor (Attorney General, State of Alabama)

Sandra Ray (Member, Alabama State Board of Education)

Dr, Ed Richardson (Superintendent, Alabama State Board

of Education)

Jimmy Wilbanks (Member, DeKalb County Board of Edu-

cation)

Michael R. White, Office of General Counsel of the State

Board of Education (Counsel for State Board of Education

and its individual Members)

Johnny Young (Member, DeKalb County Board of Educa-

tion)

iv

TABLE OF CONTENTS

Page

QUESTIONS PREGEIVUGO cs scare ctiecereivaeeun ae

TABLE SIP CORA sh ai is i EO CT een Oe iv

Ras Ge PA tI AEM i ov bias cede cececnreseaens vi

SPR ITT 8 6b 60s waren sk cae JaMer een eeanes 1

pS etc 0” BARR ears enn erary Ge renee ie ig a omer ne pope 2

CONSTITUTIONAL AND STATUTORY PROVI-

eee Bee Stay CAEP i bade Sadness nen eee eeNa aN 2

STAC RRR GIP TERM CAS ccbcca sie ciactadas cents 3

REASONS TO GRANT THE WRIT ...........00000 4

I. Only The “People Of The United States,” Not

The Justices Of This Court, Have Constitutional

Authority To Decide The “Fundamental Princi-

nee. CE IGE OC” a is wa iin chive ccesaenenis 4

Il. The Members Of This Court, Consistent With

Their Oaths Of Office To The Constitution,

Should Uphold The Peoples’ “Fundamental

Principle” Diffusing Authority To Decide

Church-State Issues Among The Many Jurisdic-

tions Of The States Rather Than Centralizing

That Authority In A Federal Jurisdiction...... il

Ill. The “People Of The United States” Have Not,

Through Their Moral Failings Or Otherwise,

Forfeited Their Right To Decide The “Funda-

mental Principles” Of Government Into The

Hands Of This Self-Avowed “Disinterested And

EPCRA ONG 5a a einai eens: 15

et eis on pase le G2 SS pea Ydivine iA

ER cian Nt ches

:

:

:

TABLE OF CONTENTS - Continued

Page

IV. The Conditions for granting the Writ prescribed

by Supreme Court Rule 20 has been met...... 28

A. There are exceptional circumstances present

So. 4-2-2 OS: O'O59 8 6 C6 ae a 6 ox

B. Relief cannot be had by any other court... 29

C. The Writ will be in aid of this Court's appel-

Pe FIONN og ee ts a es 29

ARIE R I SSR Oe yaa tek ee ina eine 29

vi

TABLE OF AUTHORITIES

Page

CASES

Abington School District v. Schempp, 374 U.S. 203

PROG o vwhis Sele deluding 44 ee Uk ae ew Eevee Sree 24

Adkins v. Children’s Hospital of the District of Colum-

8, BOA UB. Bae CIR ahchohn ee eceete eae b cakes 22

America Booksellers Assoc. v. Hudnut, 771 F.2d 323

Fees GM BOTS 6 sc Vian he ae OWE oe ARONA ROR eh eees 22

Bartkus v. People of the State of Illinois, 359 U.S. 121

Re RRRenne, tks Canepa Ret Ole ST aaa B22

Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798) ............ 10

City of Boerne v. Flores, 117 S. Ct. 2157 (1997) ........ 7

Dred Scott v. Sanford, 60 U.S. 393 (1856,............. 22

Engel v. Vitale, 370 U.S. 421 (1962) ...........4.4.. 21, 24

Marbury v. Madison, 5 U.S. 137 (1803)........... passim

Pierce v. Society of the Sisters of the Holy Names of

Jesus and Mary, 268 U.S. 510 (1925) ............... 22

Planned Parenthood of Southeastern Pennsylvania v.

Casey, S05. WS. GES (ae eedes vt knsnsesssenes 6, 7, 15, 16

Roe v. Wade, 410 U.S. 113 (1973) .............. 6, 16, 22

Stone v. Graham, 449 U.S. 39 (1980)..............002. 23

Vvisconsin v. Yoder, 406 U.S. 205 (1972)............... 22

STATUTES

2B USA. TRE Ss iss Soka Ui ea saws weed Ly a

Alabama Coe © WG TDS cic icck cctvvsweeteses 1, @'s

vii

TABLE OF AUTHORITIES — Continued

Page

OTHER AUTHORITIES

ABRAHAM LINCOLN; CompLete Works 5 (J. Nicolay &

His MI NI INS ia a a cc ere a i 20

Abraham Lincoln; Proclamation of a Day of Fasting,

FORK Tip BOWS SRNR EROS ETSES OR AIV CL RR ier heh 25

Beware the Agenda of Alabama Theocrats Who Would

Establish a State Religion, INSIGHT ON THE

RINE Os ls I ic eC eet LRN 16

Brennan, William, Address at Park School (Nov.

21, 1982), at NG MEd ai B's by @ baw DER EES Chae ek 6, 18

SCID BONEN 65 ic fc 046 Vs eR Oho k cheba 1S, 14, 15

Forrester, W. “Are We Ready For Truth In Judging?”

OP A DY EEA CODEED oi Pbk vec see vewccicas s (ulwe. 6

Kaufman, B. A., Washington’s Farewell Address:

The View from the 20th Century (Chicago/

I I ooo rat or len Marl ee cy 2 oo 7

PAPERS OF GEORGE WASHINGTON, PRESIDENTIAL SERIES

284-86 (W.W. Abbot et al., eds) (Mark A. Mas-

tromarino, ed.), University Press of Virginia

om Re > AG a ee Cae ae ee 26

Stokes, Anson Phelps, Church And State In The

United States, 51, 418, 427-46 (1950) .............. 21

THe Rea THOMAS JEFFERSON 498 (1983) (NaTIONAl

CENTER FOR CONSTITUTIONAL STUDIES) ................ 19

CONSTITU TIONAL PROVISIONS

oO RE Ra iy AEE PRON Oe ape en Re SORA 2, 18

Vill

TABLE OF AUTHORITIES ~ Continued

Page

as” a. ek A re rare rw yh tr el 2, 18

ti Mw, |. af Pee er ee eee 2, 18, 21, &

oh ge. Sp | ae RA errr a tie bee oe

U.S. Const. amend. XIV, Sec. 1......--ceeecvcesee 2, 12

U.S. Const. preamble ....... 660s eee eee eeeeeeees Pe

Ata. Const. (1901), Art. I, Sec. 1... cc eee cece eee enees 21

Ata. Const. (1901), Art. I, Sec. 3.0... cece een eens 21

i

:

:

4

t

]

PETITION FOR A WRIT OF MANDAMUS

Petitioners Fob James, Jr., Governor of Alabama, and

the Dekalb County, Alabama, Board of Education and its

current members: Tommie Johnson, Mary Etta Bailey,

Johnny Young, Greg Buttram, Dot Burke, and Richard

Land, pursuant to Rule 20 of the Rules of this Court and

28 U.S.C. § 1651(a) (“All Writs Act”), request that this

Petition for a Writ of Mandamus be granted and that such

writ be issued directing the United States District Court

for the Middle District of Alabama to dismiss the action

styled Chandler v. James, Civil Action No. 96-D-169-N and

vacate any orders issued therein, for lack of subject mat-

ter jurisdiction.

OPINIONS BELOW

The Order of the United States District Court for the

Middle District of Alabama dated July 30, 1997, denying

Petitioner James’ motion to dismiss for lack of subject

matter jurisdiction is unreported, but is reproduced in the

Appendix, at App. 1-3. The district court’s original Mem-

orandum Opinion, issued March 12, 1997, declaring Ala.

Code § 16-1-20.3 to be unconstitutional is reported as

Michael Chandler, et al., v. Forrest H. “Fob” James, |r., et al.,

958 F. Supp. 1550 (M.D. Ala. 1997) and is reproduced in

the Appendix, at App. 177-219. Under the same case

style, the District Court entered additional Orders on

October 29, 1997, permanently enjoining the Defendants

from certain actions, which is reported at 985 F. Supp.

1062 (M.D. Ala. 1997) and reproduced in the Appendix, at

App. 257-272; on November 12, 1997, vacating portions of

its October 31, 1997 Order and gr-nting Plaintiff

Chandler's motion for partial summary judgment, which

is reported at 98F F. Supp. 1094 (M.D. Ala. 1997) and

2

reproduced in the Appendix, at App. 152-176; on Novem-

ber 12, 1997, supplementing its earlier Opinion and

Orders, which is reported at 985 F. Supp. 1086 (M.D. Ala.

1997) and reproduced in the Appendix, at App. 89-151;

and on December 17, 1997, modifying its permanent

injunction, which is reported at 1997 WL 843711 (M.D.

Ala. Dec. 17, 1997) and reproduced in the Appendix, at

App. 4-88.

JURISDICTION

Petitioners seek relief from the District Court’s Order

of July 30, 1997, App. 1-3, denying Petitioner James’s

motion to dismiss this action for lack of federal subject

matter jurisdiction, and thus relief from the other Orders

of the Court as well. This Court has jurisdiction to issue a

writ of mandamus to the District Court pursuant to Rule

20 of the Rules of this Court and 28 U.S.C. § 1651(a).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The constitutional provisions involved, U.S. Const.

Arts. I, V, VI, Amendments I, XIV, are fully set in the

Appendix, at App. 220-222.

The only statutory provision at issue is Alabama

Code § 16-1-20.3 which provides, in relevant part, that,

On public scho.l, other public, or other prop-

erty, non-sectarian, non-proselytizing student-

initiated voluntary prayer, invocation and/or

benedictions, shall be permitted during com-

pulsory or non-compulsory school-related stu-

dent assemblies, school-related student sporting

events, school-related graduation or commence-

ment ceremonies, and other school-related stu-

dent events.

Ala. Code § 16-1-20.3(b) (1995).

| i lll

3

STATEMENT OF THE CASE

Plaintiffs, a school principal and his son, filed a com-

plaint in the United States District Court on February 2,

1996. Plaintiffs challenged the constitutionality of a

school prayer statute, codified at § 16-1-20.3 of the Code of

Alabama, which purported to authorize “non-sectarian,

non-proselytizing student-initiated voluntary prayer.”

Plaintiffs also sought an injunction against any prayer to

God by teachers and students together in the public

schools, or by coaches and athletes together at school

events, or by students either alone or together as part of

an official school event, in Dekalb County, Alabama. On

March 12, 1997, the District Court issued a non-final

Opinion and Order finding the statute and the above-

described prayer “unconstitutional.”

On July 22, 1997, after becoming aware of the issues

involved in this case, Petitioner Governor Fob James, Jr.

filed a motion to dismiss for lack of federal subject matter

jurisdiction and a supporting affidavit. The district court

denied the motion on July 30, 1997. App. 1-3.

From October 29, 1997, through December 17, 1997,

in a final Order and several supplementary Orders, the

District Court issued a permanent injunction against var-

ious state and local school officials, including Petitioners,

“and all those in active concert with them,” enforcing the

findings of its previous Memorandum Opinion. In

response to Petitioner James’ specific request that the

prayers to God of American citizens according to their

own consciences be freely allowed in the schools, espe-

cially during national emergencies such as war, the Court

ruled specifically that “crisis” prayer would not be

allowed. App. 165. The Court noted specifically that it

would use its power of “contempt”, which Petitioners

LOT LEE SR ET ee ere

4

understand to be its power to impose fines or imprison-

ment, to enforce its injunction. App. 272. The Court also

ordered the appointment of a “monitor” to seek out and

report “illegal” prayer in the Dekalb County schools, as

well as to instruct school officials on what would be

required of them under the orders of the Court. App.

270-272. The District Court retained jurisdiction of the

case to enforce its Orders. App. 272.

On November 17, 1997, Petitioner James filed a

Notice of Appeal to the United States Court of Appeals

for the Eleventh Circuit. The Petitioner School Board and

its members followed with a Notice of Appeal. The case

has been docketed and awaits final briefing or argument

in the Court of Appeals. The activities of the “monitor”

and implementation of the injunction are ongoing.

REASONS FOR GRANTING THE WRIT

I. Only The “People Of The United States,” Not The

Justices Of This Court, Have Constitutional Author-

ity To Decide The “Fundamental Principles Of Our

Society.”

“The whole American fabric,” wrote Chief Justice

Marshall, “has been erected” on the authority of “the

people . . . to establish, for their future government, such

principles as, in their opinion, shall most conduce to their

own happiness. . . . ” Marbury v. Madison, 5 U.S. 137, 176

(1803). “The principles, therefore, so established, are

deemed fundamental,” he wrote. Id. These fundamental

principles established by the people “are designed to be

permanent,” because “the authority, from which they

proceed [the people themselves] is supreme, and can

seldom act... .” Id. For the unanimous Court in Marbury,

Chief Justice Marshall said, “Certainly all those who have

framed written constitutions contemplate them as forming

:

5

the fundamental and paramount law of the nation... . ” Id.

at 177.

By 1959, however, this Court had unraveled “the

whole American fabric” of government by ruling that the

Justices of this Court, rather than the people of this

country have the authority to decide the “fundamental

principles of our society”:

Decisions under the Due Process Clause require

close and perceptive inquiry into fundamental

principles of our society. The Anglo-American

system of law is based not upon transcendental

revelation but upon the conscience of society

ascertained as best it may be by a tribunal disci-

plined for the task and environed by the best

safeguards for disinterestedness and detach-

ment. Bartkus v. People of the State ob! Illinois, 359

U.S. 121, 128 (1959).

No longer was the supreme authority in the “American

system of law” defined by the written Constitution estab-

lished by the people, but now by this Court’s self-

proclaimed ability for “disinterestedness and detach-

ment,” and by what this Court, from its own perception

of “conscience,” would determine to be the “fundamental

principles of our society.”

In a speech in the city of Boston in 1982, Justice

Brennan of this Court expressed the same thought when

he said:

. the judiciary is ‘the essentially disinterested,

rational and deliberate element of our soci-

ety....;’ and

Obviously we Americans must accept

that . . . ‘upon judges, and particularly Justices

of the Supreme Court, rests a great share of the

delicate responsibility of deciding what must be

6

preserved and what must be changed, what we

shall protect and what we shall abandon.’!

And, it was Justice William Douglas of this Court who

explained how this process of “change” in the nation’s

fundamental law has worked: “Due process, to use the

vernacular, is the wildcard that can be put to such use as

the Judges choose,” he told the American Bar Association

Journal.?

More recently, Justice O’Connor, with the agreement

of four other members of this Court in Planned Parenthood

of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 844, 922

(1992), responded to criticism of the Court’s decision in

1973 to supplement the Constitution by creating a federal

right to an abortion. That decision, Roe v. Wade, 410 U.S.

113 (1973), in one day laid the groundwork for a wide-

spread abortion “industry” which, through the present,

has destroyed some 30 million fetuses. Nevertheless Jus-

tice O’Connor and her allies in Casey reasoned that this

Court’s inherent power to declare what was “fundamen-

tal” was broad enough to reach issues involving “one’s

own concept of existence, of meaning, of the universe,

and of the mystery of human life.” 505 U.S. at 851.

The federal rig it to an abortion rests, therefore, on

this Court’s claim of power to decide the meaning “of the

universe,” a broad power indeed. By the hands of this

Court, abortion has become a way of life in all of Amer-

ica.

1 Justice William Brennan, Address at Park School (Nov. 21,

1982), at pp. 18-19.

2 W. Forrester, “Are We Ready For Truth In Judging?” 63

A.B.A.J. 1212 (1977).

7

Moreover, since Casey this Court has made it clear

that only this Court, and not any inferior branch of geov-

ernment such as Congress, has the power to change the

fundamental law:

If Congress could define its own powers by

altering the Fourteenth Amendment’s meaning,

no longer would the Constitution be ‘superior

paramount law, unchangeable by ordinary

means’... . Marbury v. Madison, I Cranch, at 177,

2 L. Ed. 60. Under this approach, it is difficult to

conceive of a principle that would limit congres-

sional power.

City of Boerne v. Flores, 117 S. Ct. 2157, 2168

(1997).

Is it not just as dangerous for a self-proclaimed “disin-

terested and detached” Court to “define its own

powers?”

No person in American history provides a more stark

contrast to this Court on the ability to properly handle

power than the nation’s first President, George Washing-

ton. A mere “layman” obviously far less “disinterested

and detached” than any member of this Court, Washing-

ton chose to accept constitutional limitations on his own

power. ‘n 1796, after leading the nation to Independence

from Great Britain, serving as president of the Constitu-

tional Convention of 1787 and twice as President of

United States, he gave his Farewell Address® to his fellow

citizens on the ninth anniversary of the adoption of the

Constitution in Philadelphia:

It is important in those . . . entrusted with [the

Constitution’s] administration to confine them-

selves within their respective constitutional

3 See Kaufman, B. A., Washington’s Farewell Address: The

View from the 20th Century (Chicago/Quadrangle

Books/ 1969), at pp. 15-30.

8

spheres, avoiding in the exercise of the powers

of one department to encroach upon another.

The spirit of encroachment tends to consolidate

the powers of all the departments in one and

thus to create, whatever the form of govern-

ment, a real despotism. A just estimate of that

love of power and proneness to abuse it which

predominates in the human heart is sufficient to

satisfy us of the truth of this position. The neces-

sity of reciprocal checks in the exercise of politi-

cal power, by dividing and distributing it into

different depositories, and constituting each the

guardian of the public weal against invasion by

the others, has been evinced by experiments

ancient and modern, some of them in our coun-

try and under our own eyes... . Id. at note 3.

With sagacious foresight, Washington described what

this Court has become:

They serve .. . to put in the place of the dele-

gated will of the nation, the will of a party, often

a small but artful and enterprising minority of

the community. They are likely in the course of

time and things to become potent engines by

which cunning, ambitious, and unprincipled

men will be enabled to subvert the power of the

people, and to usurp for themselves the reins of

government, destroying afterwards the very

engines which have lifted them to unjust Gomin-

ion. Id. at note 3.

And, in words close to those used by Chief Justice

Marshall in the Marbury case, President Washington said

of the Constitution:

Respect for its authority, compliance with its

laws, acquiescence in its measures, are duties

enjoined by the fundamental maxims of true

liberty. The basis of our political systems is the

right of the people to make and to alter their

9

constitutions of government. But the Constitu-

tion which at any time exists till changed by an

explicit and authentic act of the whole people

is sacredly obligatory upon all. (bold emphasis

added) Id. at note 3.

Judges, especially, have a “sacred obligation” to

uphold the peoples’ exclusive right “to make and to alter

their constitutions of government.” As Chief Justice Mar-

shall wrote in Marbury:

... the framers of the constitution contemplated

that instrument, as a rule for the government of

courts, as well as of the legislature. Why other-

wise does it direct the judges to take an oath to

support it? This oath certainly applies, in an

especial manner, to their conduct in their official

character. How immoral to impose it on them, if

they were to be used as the instruments, and the

knowing instruments, for violating what they

swear to support!

Why does a judge swear to discharge his

duties agreeably to the constitution cof the

United States, if that constitution forms no rule-

for his government? If it is closed upon him, and

cannot be inspected by him?

If such be the real state of things, this is

worse than solemn mockery. To prescribe, or to

take this oath, becomes equally a crime.

5 U.S., at 179-180.

During the succeeding 200 years of American history

since Marbury, never, not even once, has this Court

acknewledged these words of Chief Justice Marshall

about the constitutional oath of office taken by judges.

This omission is understandable, though, given the feroc-

ity of Marshall’s condemnation of judges who would

disregard the Constitution as a binding “rule of govern-

ment” for them ~— judges who would, for instance, seek

the power to become “interim legislators.”

10

Article VI of the Constitution prescribes that the oath

of office is to “this Constitution,” that is the one “estab-

lished by the people of United States.” U.S. CONST. Art.

VI, pmbl. To reject this is to reject what Chief Justice

Marshall described in Marbury as “the greatest improve-

ment on political institutions - a written constitu-

tion . . . in America, where written constitutions have

been viewed with so much reverence... .” Id. at 178.

Nowhere does the Constitution provide for an oath of

office to support what the Justices of this Court, rather

than people of this country, have declared to be the

“fundamental principles” of government. Nowhere has

this Constitution been amended to say that in recognition

of the superior ability of this Court for “disinterestedness

and detachment,” the people have turned over to the

members of this Court the power to resolve important

social issues in America from one generation to the next.

Nowhere does the Constitution provide that the Justices

of this Court are authorized to look for surreptitious or

hidden meanings in the constitutional text, and so to

amend it without the “authentic and explicit act of the

whole people” said to be required by President Washing-

ton.

From the beginning, even under Chief Justice Mar-

shall, this Court was presented with the opportunity to

pursue the enlargement of its own powers by unconstitu-

tional means. Only four years prior to Marbury, in Calder

v. Bull, 3 U.S. (3 Dall.) 386, 387-388 (1798), Justice Chase

had already argued that the judiciary should have extra-

constitutional powers to declare the “great first principles

of the social compact.” And the Constitution’s Fifth

Amendment already contained a “due process” clause

EE eV“

11

which was vulnerable, along with every other unsuspect-

ing provision of the Constitution, to this Court’s con-

scription as “wildcards” to expand the Court’s powers.

But in the Marbury case in 1803, Chief Justice Mar-

shall firmly grounded the role of the American judiciary

in the Constitution alone, not in any extra-constitutional

powers that the judiciary might wish to explore. The

basis for the doctrine of judicial review, as set out in

Marbury, was the duty of judges, as required by their

oaths of office, to apply as constitutional law those “fun-

damental” and “permanent” principles which “the people

have an original right to establish.” Id. at 176-77, 180.

Comparing “ordinary legislative acts” to these principles

declared by the people to be “fundamental” is the

“essence of judicial duty,” wrote Marshall. Id. at 177-78.

Therefore, when members of this Court assert the power

to declare what they, rather than the people, have deemed

to be “fundamental” in American law, they not only act

“unjudicially” but also destroy the very basis for consti-

tutional review enunciated in Marbury.

II. The Members Of This Court, Consistent With Their

Oaths Of Office To The Constitution, Should

Uphold The Peoples’ “Fundamental Principle” Dif-

fusing Authority To Decide Church-State Issues

Among The Many Jurisdictions Of The States

Rather Than Centralizing That Authority In A Fed-

eral Jurisdiction.

One of the most important “fundamental principles”

established by the “people of the United States” when

they adopted the First Amendment to the Constitution as

an express limitation on the power of Congress — was to

diffuse authority to decide church-state issues among the

many jurisdictions of the States rather than centralizing

that authority in a federal jurisdiction. See Letter from

12

Honorable Fob James, Jr., Governor of Alabama, to the

Honorable Ira DeMent, Judge for the United States Dis-

trict Court for the Middle District of Alabama (June 23,

1997) (fully set out in the Appendix, App. 223-256), at

App. 225-232, hereinafter the “DeMent letter.” More than

anything else the framers feared making the federal gov-

ernment the battleground for national church-state poli-

cies. App. 227-230.

Moreover, as this Court admitted to be true in the

1959 Bartkus case, the people who wrote and ratified the

Fourteenth Amendment did not intend to dismantle this

original constitutional structure which left church-state

policies and certain other matters to the states. Justice

Frankfurter spoke for the Court:

We have held from the beginning and uniformly

that the Due Process Clause of the Fourteenth

Amendment does not apply to the States any of

the provisions of the first eight amendments as

such. The relevant historical materials have been

canvassed by this Court and by legal scholars.

These materials demonstrate conclusively that

Congress and the members of the legislatures of

the ratifying States did not contemplate that the

Fourteenth Amendment was a short-hand incor-

poration of the first eight arnendments making

them applicable as explicit restrictions upon the

States. Bartkus, 359 U.S., at 124.

In this, the Court was correct.

Seven years after passage of the Fourteenth Amend-

ment, Congress after months of consideration had

declined to adopt a proposed constitutional amendment,

one requested by President Grant, that would have

explicitly made the First Amendment's religion clauses

By

“applicable to the States.”* T. © debates from the 44th

Congress reveal that the centri] issue was whether the

authority to define the “fundamental rights” of “religion

,

and conscience” would remain with the people of each

State, or would now be vested in federal authorities.

Senator Frelinghuysen of New Jersey supported the

amendment:

There is, sir, no room for two opinions on the

two propositions that religion and conscience

should be free, and that the people should not

be taxed for sectarian purposes ... and nothing

could be clearer than that these fundamental

rights should be secured in [the] Constitu-

tion... . Thus the article... prohibits the States,

for the first time, from the establishment of reli-

gion, from prohibiting its free exercise, and from

making any religious test a qualification to

office. 4 CONG. REC. 5261.

Senator Kernan of New York opposed the amendment:

That provision [the proposed text] has my most

hearty commendation; but for all that it is not

necessary to put it in the Federal Constitution.

That matter was discussed in the convention

that made the Constitution, and it was not

thought wise to put in any such provision, but

to leave it to the States... . There is a provision

in the constitution [of New Hampshire] that no

one can be elected governor unless he is of the

Protestant religion, and so as to members of the

Legislature of the State. But I am willing to trust

* The proposal introduced by James G. Blaine, as passed by

the House, provided that, “No State shall make any law

respecting an establishment of religion or prohibiting the free

exercise thereof... and that no money raised .. . for the support

of public schools. . . . shall ever be under the control of any

religious sect or denomination. ...” 4 CONG. REC. 5580 (1876).

14

that to the people of that State, believing that

very soon in this age of ours and in this country

of ours they will adopt the liberal provisions

which are found in the constitutions of the other

States on the subject of the sacred rights of

conscience. 4 CONG. REC. 5581.

Senator Morton of Indiana, a proponent, said:

What guarantee have we in the States? A major-

ity of the people of a State can change the Con-

stitution of that State and according to the

doctrines we have heard here tonight, doctrines

I think that will startle this nation, we are told

that the States must be left free, if they desire to

do so, to establish a church, to establish denomi-

national schools, and maintain them at public

expense. .. . What is the reason the States can-

not do it? He will say that in most of the consti-

tutions there are provisions preventing them;

but my friend knows very well that the majority

who made those constitutions can unmake

them. 4 CONG. REC. 5591-5592.

Senator Bogy of Missouri, an opponent, said:

And among the most sacred of these rights,

lying at the very foundation of all liberty, was

that of freedom of conscience and the right to

worship God according to the dictates of each

one’s individual conviction. That was left to the

States, and was not placed in the hands or under

the control of the Federal Government. The

attempt here to exercise this power takes from

the States that right and gives it to the Federal

Government. ... Mr. President, the safety of this

Government is in the denial of all such powers

to the Federal Government. Keep it where the

fathers placed it, in the States, and maintain it

there... . 4 CONG. REC. 5591.

15

The proposal, after the Senate amended the House ver-

sion, failed to obtain the required two-thirds vote for

passage in the Senate. 4 CONG. REC. 5595.

Thus, the original “fundamental principle” of the

Constitution and its First Amendment vesting jurisdiction

exclusively in the people of each State to make their own

laws on issues of religious freedom - is still the “supreme

law of the land,” which every Justice of this Court, and

every person who takes the constitutional oath of office,

is bound to obey. Yet, the Justices of this Court insist on

disobeying the “supreme law”, by taking for themselves

an unconstitutional power to decide religious issues for

the whole nation.

III. The “People Of The United States” Have Not,

Through Their Moral Failings Or Otherwise, For-

feited Their Right To Decide The “Fundamental

Principles” Of Government Into The Hands Of

This Self-Avowed “Disinterested And Detached”

Court.

There is incongruity in requiring a witness “under

oath” to tell the truth about the facts of a case while on

the witness stand, and allowing a judge “under oath” to

tell a lie about the Constitution while on the Bench.

Perhaps this is why this Court has sought to divert atten-

tion from that incongruity by focusing instead, in a wide

array of cases, on the assumption that the people of this

country are so morally flawed that they have forfeited

their right to self-government under the Constitution.

In Casey, for instance, Justice O’Connor anchors her

contention that this Court must have complete power

over social policy in America — in the record of historical

prejudice against African-Americans in this country. No

one can candidly deny this shameful record. And so

16

Justice O’Connor cites state laws against interracial mar-

riage as a reason the Court must be able to define “funda-

mental rights,” Casey, 505 U.S., at 847-48, and then she

moves fluidly through various other social objects dear to

the Court’s majorities over the years, id. at 848-850; and

finally she ends up with abortion, id. at 850-853. She

justifies one by the other. This Court, and many in the

legal community which support it, regularly use the fact

that this nation was guilty of historical injustice against

African-Americans as a battering ram against the people

to take from them their constitutional right to self-gov-

ernment.> Like a predator the Court moves from issue to

issue, always reminding the people of their failures, and

where the people have not “failed”, taking control of the

issue anyway in order to keep the people under the

Court’s self-avowed “disinterested and detached” super-

vision.

It is undoubtedly true that the people of this country

have the constitutional right, if they so choose, to march

forthrightly into hell; but they should not be taken there,

blindfolded and against their will, by the United States

Supreme Court. See Roe v. Wade, supra; cf. Psalm 139:7,

13-16.

In Casey, Justice O’Connor disclaims personal

“beliefs” about the value of unborn children as a basis for

laws against abortion, 505 U.S., at 851, willfully ignoring

> See Pamela Sumners, Beware the Agenda of Alabama

Theocrats Who Would Establish a State Religion, INSIGHT ON THE

NEWS, Jan. 5, 1998, at 25, wherein the counsel for respondents

in this case energetically uses this technique: “Poor benighted

Alabama - again the laboratory of a states’ rights experiment by

its elected officials; the butt of the national joke, again evoking

images of Bull Connor instead of the vision of a vibrant ‘new

south,’” at 25.

eee re en,

" ict

17

that it is her own belief, an agnostic one, that governs her

decision as a judge. Her personal “beliefs” allow her to

close her own mind to the risk that abortion on the whole

may be equivalent to murder; and she insists, with this

Court’s majority, that the whole American government

officially close its mind as well. Ironically Ronald Reagan,

who appointed some of the current abortion majority,

used to say that society should resolve the “doubt” about

abortion in favor of life, not against it. If there was ever

any “doubt” that this Court hesitates before imposing its

own “beliefs” on the nation, the abortion issue has

removed it once and for all.

Baseball says a lot about America. And there is one

absolute pre-condition for the game, an assumption so

deeply and subconsciously held that it is always taken for

granted; and if it ever were called into question, a pro-

found horror would envelope the game and all those who

have ever experienced the heartbeat of the game. We

speak, of course, of the absolute trustworthiness of the

umpires, and we can especially picture in our minds the

one behind home plate in the major leagues. The whole

game rests on the integrity of this man. All of the time

and all of the training and all of the emotion since child-

hood of every player on the field, and in the dugout, and

every intense coach who ever put his energy into the life

of one of these players, and every fan who is joined in

heart and soul to these players in the unity of the will to

win, depends on this man.

The umpire behind home plate, his face shrouded in

a mask, carries a mantle of authority rarely equaled in

American society. The manager for either team can get in

his face, kick dirt into the air, curse his calls, but no

matter how dire the manager’s presence, it is a foregone

conclusion before the confrontation ever begins that the

18

will of the umpire will prevail. The thought that this man,

this umpire, would show partiality — that he would bend

the rules of the game to affect the outcome, is an abhor-

rent thought. It is an unthinkable thought. It is a pecu-

liarly un-American thought.

It is “emphatically the province and duty of the judi-

cial department to say what the law is,” wrote Chief

Justice Marshall in Marbury v. Madison. 5 U.S., at 177. It is

emphaticaliy the judicial duty, he taught in that case, to

insist on fidelity to the “fundamental” and “permanent”

law made by the ultimate lawmakers - the people them-

selves - who have expressed their will through their

representatives in a written Constitution. The “govern-

ment of the United States” is “emphatically . . . a govern-

ment of laws, and not of men,” the Chief Justice wrote. Id.

at 163.

Judges, like umpires, can be forgiven for mistakes in

what they saw. What is unforgivable is for them to delib-

erately look the other way to avoid seeing what they do

not wish to see. Judges have no more authority to add to

the Constitution than umpires have to add to the rules of

the game of baseball. There can be no greater violation of

the judicial oath, no greater degradation of the judicial

office, than to usurp from the people the power to decide

“what must be preserved and what must be changed,

what we shall protect and what we shall abandon... . ”

See “Brennan Speech” supra at 2.

Article V of the Constitution vests the power of con-

stitutional amendment exclusively in state and congres-

sional legislative authorities, not in this Court. Article I

vests “all legislative powers. . . . in a Congress of the

United States”, not in this Court. But neither Article V

nor Article I, nor the oath of office in Article VI, has

prevented this Court from taking for itself constitutional

19

authority which belongs to others. This Court has dis-

dained its role as a constitutional umpire and sought

instead to establish as a rule of government its own will

rather than that of the people.

In Marbury, Chief Justice Marshall simply assumed

the perpetual integrity and honesty of the members of

this Court. History, regrettably, has confirmed the more

realistic views on human nature of President Washington

in his Farewell Address, and of the nation’s third Presi-

dent, Thomas Jefferson:

... You seem . . . to consider the judges as the

ultimate arbiters of all constitutional questions —

a very dangerous doctrine indeed, and one

which would place us under the despotism of an

oligarchy. . . . Our judges are as honest as other

men, and not more so. . . . They have, with

others, the same passions for party, for power,

and the privilege of their corps. Their maxim is,

“Boni judicis est ampliare jurisdictionem”; and

their power is the more dangerous as they are in

office for life, and not responsible, as the other

functionaries are, to the elective control. The

Constitution has erected no such single tribunal,

knowing that, to whatever hands confided, with

the corruptions of time and party, its members

would become despots. Letter to Jarvis (1820),

quoted in THe Rear THomas Jerrerson 498 (1983)

(National Center for Constitutional Studies)

The Constitution says nothing at all about the judiciary

being the “ultimate arbiter” of constitutional questions.

The claim by this Court and lower courts for such an

ultimate power rests, like this Court’s claim to be the

most “disinterested and detached” of all officials, on self-

promotion.

In his Farewell Address, President Washington recog-

nized no superior trustworthiness in the judiciary on

20

constitutional questions; rather, he emphasized the neces-

sity of “reciprocal checks in the exercise of political

power” and the necessity of making each branch of gov-

ernment “the guardian of the public weal against inva-

sion by the others.” Jefferson left no doubt that he would

refuse to enforce a Supreme Court decision if doing so

was necessary to preserve the Constitution from destruc-

tion by judges. Lincoln, in his First Inaugural Address,

warned, “[I]f the policy of the government upon vital

questions affecting the whole people, is to be irrevocably

fixed by decisions of the Supreme Court, . . . the people

will have ceased to be their own rulers, having .. .

practically resigned their government into the hands of

that eminent tribunal.” AsraHAmM LINCOLN: COMPLETE

Works 5 (J. Nicolay & J. Hay eds. 1920).

Despite these warnings, the nation is now faced with

a Court which asserts the power to “evolve” the “funda-

mental principles of our society,” thereby effectively

claiming that whatever it says about the Constitution -

even if fraudulent, must be obeyed as the “supreme law.”

Thomas Jefferson called this “despotism.” George Wash-

ington called it the “unjust dominion” of “cunning, ambi-

tious, and unprincipled men.” John Marshall called it a

“crime”, a “solemn mockery” of the constitutional oath of

office. Marbury, 5 U.S., at 180.

Only by accepting defined constitutional limitations

for itself may this Court rightfully demand the same of

others. Marbury v. Madison. In the absence of this Court's

acceptance of constitutional limitations, other constitu-

tional officials throughout government owe no “defer-

ence” to the decisions of this Court. “How immoral” for

this Court to impose its unconstitutional decisions on

other officials of government, including other judges,

who then become “knowing instruments, for violating

21

what they swear to support!” Marbury, 5 U.S., at 180;

accord Jaffree v. James, 554 F. Supp. 1104, 1127 (S.D. Al.

1983).

No constitutional official of integrity should exercise

the authority of his or her office so as to legitimize this

Court’s claims of unlimited power. No one in Ame::_a is

above the law, including the Justices of this Court. The

oath of office taken pursuant to Article VI is not to this

Court, but to “this Constitution” established by “the peo-

ple of the United States”, the very “people” that this

Court regularly accuses of being incapable of restrained

self-government.

In the church-state arena, for instance, this Court

invokes the specter of European religious wars, official

state churches, and all sorts of religious intolerance — as if

to say these things will occur if the people are allowed to

govern themselves in matters of religion. See Engel v.

Vitale, 370 U.S. 421, 425-30, 432-35 (1962).

Ironically, the people of the American States, some of

which had official churches at the time of the Constitu-

tion’s adoption, disestablished them of their own choice

during the 19th-century.© Moreover, since Independence

from Great Britain the record of the American people on

issues of religious freedom has been generally excellent,

with virtually all States opting explicitly to protect the

rights of individual conscience for at least the last 100

years.” And in the few examples the Court could give in

6 See Stokes, Anson Phelps, Church And State In The

United States, 51, 418, 427-46 (1950).

7 See, e.g., ALABAMA ConsTITUTION (1901), pmbl. (invoking

guidance of Almighty God); Art. I, Sec. 1. (recognizing

endowment by Creator of inalienable rights); Sec. 3.

(prohibiting religion established by law, compulsory tithing,

22

the twentieth century of unwise state or local laws affect-

ing religion, the laws in question came mostly out of a

misguided secular, not “religious”, motivation. See, ¢.g.,

Pierce v. Society of the Sisters of the Holy Names of Jesus and

Mary, 268 U.S. 510 (1925); Wisconsin v. Yoder, 406 U.S. 205

(1972).

Nevertheless this Court continues cynically to exer-

cise political power, by allying itself with like-minded

Congressional minorities willing to filibuster or other-

wise engender political stalemate, in order to enable this

Court to impose its agendas on the nation with impunity.

But there is nothing new in this.

Even before the Civil War this Court exploited a

national political stalemate to unconstitutionally create a

slave holder’s fundamental “right” to keep his slaves in

“free” U.S. territories where Congress had earlier prohib-

ited the extension of slavery. Dred Scott v. Sanford, 60 U.S.

393 (1856) (reasoning that to deny a slaveholder’s “right”

to take his slave “property” to free territories “could

hardly be dignified with the name due process of law,” id.

at 450). During the first part of this century this Court

unconstitutionally created additional “fundamental”

principles to protect the Court’s then favored economic

interests from legislative regulation such as minimum

wage laws. See Adkins v. Children’s Hospital of the District

of Columbia, 261 U.S. 525 (1923). For the better part of the

rest of this Century, this Court has unconstitutionally

pursued its favored social agendas by creating a myriad

of so-called “fundamental” rights, including a right to an

abortion, Roe v. Wade, a “right” to peddle pornographic

depictions of rape and bestiality, America Booksellers

religious test for public office, or religious qualification for civil

rights).

23

Assoc. v. Hudnut, 771 F.2d 323, 324, 331 (7th Cir. 1985),

affirmed 475 U.S. 1001, 106 S. Ct. 1172 (1986), and a “right”

to have the Ten Commandments removed from the

schoolhouse wall, Stone v. Graham, 449 U.S. 39 (1980).

At present in Alabama, U.S. District Judge Ira

DeMent has threatened to use his “contempt” power to

financially ruin or put in jail those teachers or coaches

who might pray to the Almighty with their students or

athletes in the schools or at school events. App. 272. A

$250,000 fine is the figure the judge has verbally men-

tioned to the lawyers. This judge has also employed a

“monitor,” which is more aptly described as the “prayer

police,” to investigate the schools and report back to him

on which teachers, or coaches, or students, or school

principals might be engaging in “illegal” prayer. App.

270-272.

There were teachers who, upon hearing that Presi-

dent Reagan had been shot in 1981, led their classes in

prayer to God to spare the President's life. They did so at

the personal risk of being sued under this Court’s uncon-

stitutional “precedents.” In the prayers of teachers like

these — lies the hope of America.

In the grand tradition of this Court, however, Judge

DeMent accuses teachers like these who offer heartfelt

prayer to God, even in a time of national vulnerability or

crisis, of religious “coersion” of any students who do not

wish to hear the prayers of others. Who is guilty of

“coercive religious practices,” App. 86-87, Alabama

teachers or coaches or students who express public

dependence on God, or the judges who intend to compel

them into silence by penalty of jail or financial ruin?

This Court requires a religious schizophrenia on the

part of United States citizens, so that if they hold a

government job such as a teacher or a coach, they must

24

hide their real personality, or repress their faith, while on

the job. These are people of faith in the practical sense,

people who cannot in their own consciences be one thing

in “private” and another in “public”. Although they

believe they cannot succeed at their jobs without the

actual blessing of God upon them, they are forbidden by

this Court from publicly acknowledging this dependence

while at school, and are required instead to profess by

their silence a secular sufficiency for their undertakings.

Perhaps this. Court thinks public school teachers or

coaches who will not hide their faith while on the job are

unfit for public employment? Or perhaps these people of

faith in God should be consigned to religious ghettos,

since their very presence in the public square is such an

offense to the members of this Court?

According to this Court, “religious belief” must not

be given public expression in the schools. Engel, 370 U.S.,

at 422, 430; Abington School District v. Schempp, 374 U.S.

203, 219, 222 (1963). This seems quite incredible in a

nation whose very existence began with a Declaration of

Independence which expressed public, official, and cor-

porate “religious belief” in the “Creator” and “Supreme

Judge of the world”, whose help was very much needed

at the time. Moreover, this Court’s claim that it remains

“neutral” among any and all religious beliefs, Schempp,

374 U.S., at 215, 218, 221, besides being logically impossi-

ble, is belied by this Court’s willingness to silence the

expression of religious belief with which it disagrees by

force. “Put monitors in the schools to look for illegal

prayer,” say the federal courts. “[I]t is fit and becoming in

all people, at all times, to acknowledge and revere the

Supreme Government of God .. . [that] the united prayer

of the nation may ascend to the Throne of Grace... ,”

aD

says Lincoln. Proclamation of a Day of Fasting, Aug. 12,

1861.

We in Alabama fully intend to protect, as our state

Constitution requires, and with sensitivity and respect,

the rights of individuals who wish to participate in public

religious expressions, as well as the rights of those who

do not wish to do so. This includes respecting the wishes

of parents as to their own children. We agree with the

“religious beliefs” of James Madison that a person’s

expression of faith to God is beyond the power of another

person to control. See DeMent letter, App. 250-251, 253.

For this reason a majority should never be allowed to

compel a minority to perform a “religious” duty. Neither

should a minority be allowed to prevent a majority from

exercising their faith according to their consciences.

The “equal right . . . of conscience”, spoken of by

James Madison, is as true on public ground as on private.

App. 252-253. Whether prayer is “personal” or “rela-

tional,” “individual” or “corporate,” “private” or “pub-

lic,” is up to those who pray and the God to Whom they

pray; and not to the Justices of this Court. App. 251.

“Freedom of religion” is disappearing in America.

Because of this Court, a few people claiming “freedom

from religion” can silence others in public places such as

schools. This may have precedent in the Soviet Constitu-

tion of 1918, which spoke of “real freedom of conscience”

and the “separation of the school from the church”,® but

8 For the purpose of securing . . . real freedom of

conscience, the church is to be separated from the state and the

school from the church, and the right of religious and

antireligious propaganda is accorded to every citizen.

Constitution of the Russian Socialist Federated Soviet Republic,

Article Two, Para. 13 (1918).

26

it has no precedent in the Constitution of Philadelphia or

its amendments.

On August 17, 1790, upon a visit to Newport, Rhode

Island, President George Washington in a now famous

letter addressed what had been the largest Jewish com-

munity in the American colonies:

.. . For happily the government of the United

States, which gives to bigotry no sanction, to

persecution no assistance requires only that they

who live under its protection should demean

themselves as good citizens, in giving it on all

occasions their effectual support. ... May the

children of the stock of Abraham, who dwell in

this land, continue to merit and enjoy the good

will of the other inhabitants; while everyone

shall sit in safety under his own vine and fig

tree, and there shall none to make him

Ce ta

The previous day, Congregation Yeshuat Israel of New-

port had greeted the President with these gracious words:

With pleasure we reflect on those days — those

days of difficulty, and danger when the God of

Israel, who delivered David from the peril of the

sword, shielded your head in the day of battle;

and we rejoice to think, that the same spirit who

rested in the Bosom of the greatly beloved Dan-

iel enabling him to preside over the Provinces of

the Babylonish Empire, rests and will ever rest

upon you, enabling you to discharge the

arduous duties of Chief Magistrate in these

States. 1°

9 THe Papers or GEORGE WASHINGTON, PRESIDENTIAL SERIES

284-86 (W.W. Abbot et al., eds) (Mark A. Mastromarino, ed.),

University Press of Virginia (Charlottesville, 1996).

10 Jd. note 9.

27

This “Daniel” whose spirit the Newport synagogue

wished upon President Washington was the ancient

Hebrew prophet recorded in the Bible. Exiled to Babylon

during the period of the first destruction of Jerusalem,

but helped by God, Daniel rose to prominence in the

pagan Babylonian kingdom. From the biblical book of

Daniel, we learn that this Court is not the first institution

in human history to assert the power to control when and

where prayers to God may be said.

When King Darius the Mede ruled Babylon, and Dan-

iel served under him as chief administrator, Daniel's

political enemies sought his death by instigating a royal

decree that would make the prayers Daniel uttered to

God each day illegal. (Daniel 6:5,10 NKJ) Daniel prayed

from the “upper room” of his house, “with his window

open toward Jerusalem” (6:10), thus signifying his identi-

fication with that ancient city, then conquered and dilap-

idated, but symbolic of an unseen kingdom that would

return to rule the earth.

It must have been quite an affront to the Babylonian

mind set for its highest official under the king, a Jew from

a conquered land, to prophesy the ultimate fall of Baby-

lon and judgment of the world by the God of Israel:

... And the stone that struck the image became

a great mountain and filled the whole earth... .

And in the days of these kings the God of

Heaven will set up a kingdom which shall never

be destroyed. . . . it shall break in pieces and

consume all these kingdoms, and it shall stand

forever. (Daniel 2:35,44)

I was watching in the night visions, And behold,

One like the Son of Man, coming with the clouds

of Heaven! He came to the Ancient of Days... .

Then to him was given dominion an¢ glory and

a kingdom, . . . His dominion is an everlasting

28

dominion. ... And his kingdom the one which

shall not be destroyed. (7:13-14)

At the instigation of Daniel’s enemies, King Darius

issued a decree “that whoever petitions any god or man

for thirty days, except you, O King, shail be cast into the

den of lions.” (Daniel 6:7) When Daniel knew that “the

writing was signed” (6:10), he could have simply shut the

windows of his house, or otherwise kept his prayers out

of public view. Or, he could have reasoned that the decree

was only for 30 days, and that for such a brief period, he

could obey Darius over G-d.

But, “ .. . with his windows open toward Jerusalem, he

knelt down on his knees three times that day, and prayed

and gave thanks before his God, as was his custom since

early days.” (Daniel 6:10) Then Daniel's accusers went to the

King and, “according to the law of the Medes and Persians,

which does not alter” (6:12), Daniel was “cast . . . into the

den of lions.” (6:16) The next day he was still alive. “My God

sent His angel and shut the lions’ mouth . . . because I was

found innocent before Him; and also . . . I have done no

wrong before you,” Daniel told the king. (6:22)

And so, some 2500 years after Darius the Mede, the

United States Supreme Court also presumes upon the

God of Israel to control when and where prayer to Him

by His people will be a’ wed. This, the people of Ala-

bama have never done. [nis, the “people of the United

States” have never done. This, the “Peoples’” Constitu-

tion has never done.

IV. The Conditions for granting the Writ prescribed by

Supreme Court Rule 20 has been met.

A. There are exceptional circumstances present.

The immediate threat of the federal courts jailing or

fining United States citizens in DeKalb County, Alabama,

29

for praying in the schools, not because the U.S. Constitu-

tion prohibits it, but because the members of this Court

are personally opposed to it, is an exceptional circum-

stance.

B. Relief cannot be had by any other court.

Although other courts pursuant to their oaths of

office may rightfully refuse to follow, or implement, deci-

sions of this Court which openly usurp from the people

the constitutional authority to decide the “fundamental

principles of our society,” only this Court is in a position

to restore to the whole nation the stability and integrity

of constitutional government which has been lost.

C. The Writ will be in aid of this Court’s appellate

jurisdiction.

The restoration to this Court of an appellate jurisdic-

tion based upon its legitimate role in our constitutional

government, rather than an illegitimate role usurpative of

the constitutional authority of others, will enable the

Court to devote much more time to its legitimate role,

with consequent benefits to this Court’s exercise of its

appellate jurisdiction as well as to the nation.

CONCLUSION

On the authority of the United States Constitution,

the U.S. District Court should be ordered to dismiss this

case for lack of a federal question:

This Constitution, and the laws of the United

States which shall be made in pursuance

thereof, . . . shall be the supreme law of the

land; .. . and all executive and judicial officers,

both of the United States and of the several

30

states, shall be bound by oath or affirmation, to

support this Constitution;. .

Done in convention by the unanimous consent

of the States present the seventeenth day of

September in the year of our Lord one thousand

seven hundred eighty-seven and of the indepen-

dence of the United States of America the

twelfth. In Witness whereof we have hereunto

subscribed our names,

George Washington -

Presidt. and Deputy from

Virginia.

U.S. Const. art. VI.

This Brief is dedicated to the people of Dekalb

County, Alabama, who, like the “people of the United

States” over two hundred years before them, have put

themselves at risk for the sake of their own freedom and

that of their children.

Respectfully submitted,

Rosert B. FRENCH Forrest H. James III

Attorney for DeKalb County Attorney of Record for

School Board Governor Fob James, Jr.

P.O. Box 680596 300 Vestavia Parkway,

Ft. Payne, AL 35967 Suite 2300

(205) 845-2250 Birmingham, AL 35216

(205) 823-8751

Counsel for Petitioners

APPENDIX

Sa he A Ieee Ce een Se

App. 1

Michael CHANDLER, et al., Plaintiffs,

v.

Forrest H. “Fob” JAMES Jr., et al., Defendants.

Civil Action No. 96-D-169-N.

United States District Court,

M.D. Alabama,

Northern Division.

July 30, 1997.

ORDER

DE MENT, Judge.

Before the Court is Governor James’ motion to dis-

miss filed July 22, 1997. In essence, the Governor invites

this Court to (1) “overrule” or ignore years of Supreme

Court precedent and, in so doing, (2) abdicate its duty, as

the Court perceives it, to adhere to the hierarchy of

authority among federal courts and, finally, (3) to effec-

tively alter the balance of power between the coordinate

branches of government. Although the Court appreciates

the thoroughness of the Governor’s research and the

appeal of much of the Governor’s argument, for the

following reasons, the Court must respectfully decline the

Governor’s invitation.

First, to promote uniformity and stability in the law

and to maintain the integrity of the judiciary this Court

must follow the doctrine of stare decisis. Under this doc-

trine, this Court must accept as dispositive prior deci-

sions of law made by the Supreme Court, the Eleventh

Circuit Court of Appeals and/or this Court, in any case

where the identical legal issue is raised. The same is true

with respect to the Alabama Supreme Court and the

appellate courts of Alabama when the legal issue is one of

App. 2

State law. The importance of adhering to this doctrine is

magnified in a case such as this where the legal issue in

dispute has long been settled, rightfully or wrongfully,

and is the touchstone for innumerable court decisions.

Second, even if the Court agreed with the Governor

that the Supreme Court has misinterpreted the Four-

teenth Amendment, this Court cannot simply ignore

plainly applicable Supreme Court decisions. For any hier-

archy of authority to be legitimate, decisions made at the

top of that hierarchy must be followed by those below. As

an Article III federal district court, this Court sits at the

bottom of the hierarchy of the constitutionally-created

federal judiciary and is duty-bound to follow the pro-

nouncements of the Supreme Court.! The Court routinely

explains to juries that, as a trial court, this Court does not

make law, but instead must take the law as the Court

finds it, like it or not. Here, the law is unequivocal; the

protections of the First Amendment have, by the Supreme

Court of the United States, been made applicable to the

State of Alabama through the Fourteenth Amendment.

See, e.g., Cantwell v. Connecticut, 310 U.S. 296 (1940).

Finally, it is perhaps the most fundamental tenet of

our judicial system that the Supreme Court is the ultimate

arbiter of Constitutional interpretation. This principle

was firmly established in 1803 when the Supreme Court

decided Marbury v. Madison and was reaffirmed just over

a month ago in City of Boerne v. P. F. Flores, 1997 WL

234322 at *10 (June 25, 1997). This principle is not only

1 In the words of General Robert E. Lee, “Duty is the

sublimest word in our language.”

App. 3

important to the orderly operation of our judicial system,

it lies at the heart of the judicial branch’s role as a

“check” on the outer branches of our government. The

Governor’s invitation to ignore the Supreme Court’s

interpretation of the Fourteenth Amendment threatens to

erode this principle and, consequently, poses a serious

threat to our system of democratic self-government. For

these reasons, the Governor’s motion is due to be denied.

Accordingly, it is CONSIDERED and ORDERED that

Governor James’ motion to dismiss be and the same is

hereby DENIED.

It is further CONSIDERED and ORDERED that Gov-

ernor James’ July 22, 1997, motion “for leave to file brief”

be and the same is hereby DENIED.

DONE this the 30th day of July, 1997.

3 /s/ Ira DeMent

4 UNITED STATES

DISTRICT JUDGE

App. 4

Michael CHANDLER, et al., Plaintiffs,

v.

Fob JAMES, et al., Defendants.

No. CV 96-D-169-N.

United States District Court, M.D. Alabama.

Dec. 17, 1997.

ORDER

DE MENT, J.

Before the court is a “Motion For Partial Stay Of

Permanent Injunction” (“Defs.’ Mot.”) filed on November

10, 1997 by the Attorney General of the State of Alabama,

the Alabama State Board of Education and its individual

members, and the DeKalb County, Alabama, Board of

Education and its individual members (“Defendants”).

Defendants filed a “Memorandum In Support” (“Defs.’

Mem. In Supp.”) on the same date. Plaintiffs filed their

“Opposition To ‘Defendants’ Motion To Stay’” (“Pls.’

Opp’n”) on November 18, 1997 to which Defendants filed

a Reply (“Defs.’ Reply”) on November 24, 1997. On the

same date, Plaintiffs filed their “Supplemental Opposi-

tion To ‘Defendants’ Motion To Stay’ ” (“Pls.’ Supplemen-

tal Opp’n”), and the “Deciaration Of Susan Jane Neely In

Opposition To ‘Defendants’ Motion To Stay’ Injunction”

(“Neely Decl.”). On December 5, 1997, Plaintiffs filed

their “Reply To ‘[Defendants’] Reply to Plaintiffs’ Oppo-

sition To Defendants’ Motion For Partial Stay,’ ” (“Pls.”

Reply”), and the Declaration of John Woodfin (“Woodfin

Decl.”).1 On December 4, 1997, counsel for the DeKalb

1 Woodfin’s Declaration was originally filed in handwritten

form as Exhibit B to Plaintiffs’ Supplemental Opposition filed

App. 5

County Board of Education and its Superintendent, filed

a “Report to Court of Counsel of DeKalb County Board of

Education, et al.” (“DeKalb Sch. Bd. Report To Ct.”) On

December 15, 1997, Plaintiffs filed their “Additional Evi-

dence In Opposition To Defendants’ Motion For Stay.”

(“Pls.’ Add. Evid.”).

Defendants move the court, pursuant to Rule 62 of

the Federal Rules of Civil Procedure, for a stay of sections

6(a), 6(b), 6(c), 6(d), 6(e) and 7 of the court’s October 29,

1997 Permanent Injunction (“Permanent Inj.”), pending

review by the Eleventh Circuit Court of Appeals. (Defs.’

Mot. at 1.) Defendants contend that these sections of the

Permanent Injunction are “vague and overbroad.” (Defs.’

Mem. In Supp. at 1.) Plaintiffs argue that the “proscrip-

tions are all specific and under the totality of the circum-

stances give .. . an extremely clear understanding of the

conduct that is proscribed.” (Pls.’ Opp’n at 7.) After care-

ful consideration of the arguments of counsel, as well as

relevant law, the court finds that Defendants’ “Motion

For Partial Stay Of Permanent Injunction” is due to be

granted as to twelve words of the court’s three-thousand,

seven-hundred and fourteen word Permanent Injunction,

and otherwise denied.

DISCUSSION

On March 12, 1997, the court issued a Memorandum

Opinion and Order finding unconstitutional Alabama

Code Section 16-1-20.3, Alabama’s fourth incantation of a

November 24, 1997. The December 5, 1997 filing was typed and

formally executed.

App. 6

“school prayer” statute. Chandler v. James, 958 F.Supp.

1550, 1568 (M.D.Ala.1997). The challenge to the statute

arose in the context of officially initiated, promoted and/

or sanctioned religious activity that was occurring in the

public schools of DeKalb County, Alabama. On October

29, 1997, the court issued a Permanent Injunction enjoin-

ing various state and local officials from enforcing Ala-

bama Code Section 16-1-20.3. (See Permanent Inj. at 1-3.)

The Permanent Injunction also prohibited a variety of

officially initiated, promoted and/or sanctioned activities

that the court found to be in violation of the First Amend-

ment.? (Id. at 3-12.) Provisions were made to ensure com-

pliance and to protect the rights of those citizens who

were subject to the activity found unconstitutional. (Id. at

3-16.) In the Motion To Stay currently before the court,

Defendants do not challenge those portions of the Perma-

nent Injunction prohibiting enforcement of Alabama

Code Section 16-1-20.3; their challenge is limited to speci-

fic sections of the Permanent Injunction applicable to

DeKalb County, Alabama.

2 In addition to the March 1997 Memorandum Opinion and

Order, the court’s findings were articulated in its November

1997 Supplemental Opinion and Order and November 1997

Memorandum Opinion and Order.

3 The Defendants, speaking through the Attorney General,

stated that they are “not challenging this Court’s March 12, 1997

Memorandum Opinion, the factual record in this matter, or

thirty years of controlling legal precedent. . . . For purposes of

Defendants’ Motion For Partial Stay, the Attorney General is

only challenging certain provisions of this Court’s October 29,

1997 Permanent Injunction.” (Defs.’ Reply at 2.)

App. 7

For purposes of clarity, and in order to rectify convo-

luted interpretations of the terms of the court’s Perma-

nent Injunction, the court will: (1) state the applicable

law; (2) restate the specific provisions of the Permanent

Injunction that are at issue; (3) summarize the arguments

of counsel; and (4) analyze the arguments of counsel in

light of applicable law and the terms of the Permanent

Injunction.

I. APPLICABLE LAW

A. Standard Of Review

Rule 62(c) of the Federal Rules of Civil Procedure

provides that “the court in its discretion may suspend,

modify, restore, or grant an injunction during the pen-

dency of the appeal upon such terms as to bond or

otherwise as it considers proper for the security of the

rights of the adverse party.” Fed.R.Civ.P. 62(c). In Hilton v.

Braunskill, 481 U.S. 770, 776 (1987), the Supreme Court

stated that:

Different Rules of Procedure govern the power

of district courts and courts of appeal to stay an

order pending appeal. See Fed.Rule Civ.Proc.

[sic] 62(c); Fed.Rule App.Proc. [sic] 8(a). Under

both Rules, however, the factors regulating the

issuance of a stay are generally the same: (1)

whether the stay applicant has made a strong

showing that he is likely to succeed on the

merits; (2) whether the applicant will be irrepa-

rably injured absent a stay; (3) whether issuance

of the stay will substantially injure the other

parties interested in the proceeding; and (4)

where the public interest lies.

App. 8

Hilton, 481 U.S. at 2119 (citations omitted).* These factors

“contemplate individualized judgment in each case, [and]

the formula cannot be reduced to a set of rigid rules.” Id.

Defendants urge the court to also consider their

Motion under what they describe as the “alternate stan-

dard” outlined by the Eleventh Circuit in Garcia-Mir v.

Meese, 781 F.2d 1450, 1453 (11th Cir. 1986). (Defs.’ Mem.

In Supp. at 3.) There, the Eleventh Circuit, as quoted by

the Defendants, stated that “[o]rdinarily the first factor is

the most important. . . [bJut the movant may also have

his motion granted upon a lesser showing of a substantial

case on the merits when the balance of equities [identi-

fied in factors 2, 3, and 4] weighs heavily in favor of

granting the stay.” (Defs.’ Mem. In Supp. at 3 (citing

Garcia-Mir, 781 F.2d at 1453).) Defendants argue that they

are “not only likely to prevail on appeal, but the last three

factors weigh heavily in favor of granting the stay. There-

fore, the movants are entitled to prevail under the Elev-

enth Circuit’s alternate standard.” (Id.)

As an initial matter, the court notes that in Garcia-

Mir, the Eleventh Circuit addressed an “emergency

motion to stay” filed in the court of appeals, rather than

in the district court in which the action originated.

Garcia-Mir, 781 F.2d at 1451, 1453; see also, United States v.

Bogle, 855 F.2d 707 (11th Cir. 1988) (applying factors artic-

ulated in Garcia-Mir in context of emergency appeal

before the Eleventh Circuit and citing to Eleventh Circuit

4 The parties agree that these factors guide the court’s

analysis in assessing a request for a stay. (See Defs.” Mem. In

Supp. at 3; Pls.” Opp’n at 5-6.)

App. 9

Rule 27-1(b)).5 The Eleventh Circuit specifically noted the

“emergency” nature of the motion to stay at issue there,

and noted the “extraordinarily high standards of review

5 Eleventh Circuit Rule 27-1(b) provides:

(b) Emergency Motions.

(1) A party requesting emergency action shall label the

motion as “Emergency Motion” and state the nature of the

emergency and the date by which action is necessary. The

motion or accompanying memorandum shall state the reasons

for granting the requested relief and must specifically discuss:

(i) the likelihood the moving party will prevail on the

merits;

(ii) the prospect of irreparable injury to the moving party

if relief is withheld;

(iii) the possibility of harm to other parties if relief is

granted; and

(iv) the public interest.

Counsel filing the motion shall make every possible effort

to serve the motion personally; if this is not possible, counsel

shall notify opposing counsel promptly by telephone.

(2) _ If the emergency motion raises any issue theretofore

raised in a district court, counsel for the moving party shall

furnish copies of all pleadings, briefs, memoranda or other

papers filed in the district court supporting or opposing the

position taken by the moving party in the motion and copies of

any order or memorandum decision of the district court relating

thereto. If compliance is impossible or impractical due to time

restraints or otherwise, the reason for non-compliance shall be

stated.

(3) Anemergency motion, whether addressed to the court

or an individual judge, ordinarily should be filed with the clerk

and not with an individual judge. To expedite consideration by

the court in a genuine emergency, counsel may telephone the

clerk and describe a motion that has not yet been filed in

writing. This is not a substitute for the filing required by FRAP

27(a).

App. 10

of motions for emergency stays.” Id. at 1451, 1454. In

contrast, the Motion To Stay at issue in this action was

filed with this court, a United States District Court, not

the Eleventh Circuit Court of Appeals, and is in a non-

emergency posture.

Utilization of the four Hilton factors in an “emer-

gency” context ordinarily entails analysis of substantially

more compelling factual and legal circumstances than in

ordinary motions to stay. Predictably, that is why provi-

sions are made for “emergency” motions, and why the

factors may be entitled to different weight in that context.

In an “emergency” appellate proceeding, emphasis may

be placed on the likelihood of success on the merits, in

part because the appellate court must determine that the

trial court below was “clearly erroneous.” Garcia-Mir, 781

F.2d at 1453. Once this determination is made, the likeli-

hood of reversal on appeal may justify granting a stay,

regardless of the other three factors. That is also why a

showing of a “substantial case on the merits” coupled

with the other three factors weighing heavily in favor of

the movant may justify a stay. See Garcia-Mir, 781 F:2d at

1453. Hence, emphasis on the first factor, in those con-

texts, is warranted.

Tellingly, in Hilton, the Supreme Court was not

addressing the standards utilized in “emergency” appel-

late proceedings, or “emergency” district court proceed-

ings for that matter, and made no mention of applying

heightened deference to the first Hilton factor in district

court proceedings. Hilton, 481 U.S. at 776-77. The Court

was careful to note, however, that “individualized judg-

ments” must be made in each case, and that “the formula

cannot be reduced to a set of rigid rules.” Id. at 776.

App. 11

Not only do Defendants conveniently fail to note the

emergency, appellate, posture of Garcia-Mir, as opposed

to the non-emergency posture of the Motion To Stay

currently in this court, they also fail to cite the entirety of

the Eleventh Circuit’s relevant language in Garcia-Mir

(the language quoted by Defendants is italicized):

We must always be diffident in interposing the

power of an appellate court into the province of

the trial court and its orders save upon full

briefing and mature reflection by this Court. The

grant of an emergency motion to stay the trial

court’s mandate is thus an exceptional response

granted only upon a showing of four factors: 1)

that the movant is likely to prevail on the merits

on appeal; 2) that absent a stay the movant will

suffer irreparable damage; 3) that the adverse

party will suffer no substantial harm from the

issuance of the stay; and 4) that the public inter-

est will be served by issuing the stay.

Ordinarily the first factor is the most important.

A finding that the movant demonstrates a prob-

able likelihood of success on the merits on

appeal requires that we determine that the trial

court below was clearly erroneous. But the

movant may also have his motion granted upon

a lesser showing of a “substantial case on the

merits” when the “balance of the equities [iden-

tified in factors 2, 3, and 4] weighs heavily in

favor of granting the stay.

Garcia-Mir, 781 F.2d at 1453 (citations omitted). The

emphasis placed on the first factor was clearly done in

the context of an “emergency” appellate review of a

district court order. Use of the Garcia-Mir standard by a

App. 12

district court would essentially require the court to deter-

mine that it was clearly erroneous in issuing a staying of

its order(s). Such analysis would be more appropriate in

determining a Rule 59 motion to alter or amend or a Rule

60 motion for relief from a judgment or order - not a

motion to stay pending appeal.

Regardless of whether the court applies the Hilton

factors without emphasis on one over the other, or

whether the court applies the Garcia-Mir heightened

emphasis on the first factor standard, an “individualized

judgment” under either leads the court to the conclusion

that Defendants’ Motion To Stay is due to be granted as

to twelve words of the court’s three-thousand, seven-

hundred and fourteen word Permanent Injunction, and

otherwise denied. See Hilton, 481 U.S. at 776.

The first Hilton factor entails analysis of whether the

applicant for the stay has made a “strong showing that he

is likely to succeed on the merits,” id., while under

Garcia-Mir, a stay may be warranted if the movant shows

the “probable likelihood” of success on the merits. Garcia-

Mir, 781 F.2d at 1453. This would require a determination

that the trial court was “clearly erroneous.” Id. Garcia-Mir

also allows for the granting of a motion to stay upon a

“lesser showing of a ‘substantial case on the merits’ when

the balance of the equities [identified in factors 2, 3, and

4] weighs heavily in favor of granting the stay.” Garcia-

Mir, 781 F.2d at 1453. This “lesser showing” is thus noth-

ing more than a conjunctive application of the Hilton

factors without emphasis on one over the others. A stay is

warranted if the movant satisfies all four of the elements

articulated in Hilton. Indeed, the Garcia-Mir court noted

that even if the movant’s likelihood of success on the

App. 13

merits is “substantial,” that alone will not support a stay

“when the other three factors we must consider point so

strongly in the other direction.” Id. at 1455.

The court’s Permanent Injunction was issued after

much forethought and deliberation, based on its March

1997 Memorandum Opinion And Order and on its find-

ings based on its review of the record as articulated more

fully in its November 1997 Memorandum Opinion And

Order and November 1997 Supplemental Opinion And

Order. Upon issuance of its Permanent Injunction, the

court did not consider the provisions at issue here to be

clearly erroneous then, and it declines to so find now.

Nor does the court consider the majority of the Attorney

General’s objections, arguing that the Permanent Injunc-

tion tramples free expression in its proscription of state

established religion, to be well founded.

The court finds that Defendants have neither shown

that they are likely to prevail on the merits nor that they

have a substantial case on the merits. Apparently the

court’s forty page March 1997 Memorandum Opinion

And Order, the court’s seventeen page October 1997 Per-

manent Injunction, the court’s twenty-four page Novem-

ber 1997 Memorandum Opinion And Order, and the

court’s sixty-two page November 1997 Supplemental

Opinion and Order did not make the court’s findings

sufficiently clear or were ignored: the religiously coercive

practices that were ongoing in DeKalb County, Alabama,

violate the First Amendment to the United States Consti-

tution as interpreted by the United States Supreme Court

and the Eleventh Circuit Court of Appeals. These viola-

tions necessitated the court’s Permanent Injunction.

App. 14

The court is aware of the narrow scope of the Defen-

dants’ Motion; Defendants merely contend that the provi-

sions of the Permanent Injunction proscribing

unconstitutional conduct are “vague” and “overbroad,”

and that they accordingly “hinder” free expression, not

that the underlying actions enjoined are permissible.®

Nevertheless, as the court has previously made clear, and

as the court finds now, given the state of current First

Amendment jurisprudence, as articulated by courts with

direct authority over this court, as well as the legal stan-

dards applicable to the issuance of permanent injunc-

tions, the Defendants have not made a “strong showing”

or exhibited a “probable likelihood” of success on the

merits. With the exception of a portion of section 6(a)

discussed infra, the court finds that the Permanent

Injunction meets its remedial purpose of proscribing

unconstitutional conduct without unduly burdening free

expression rights. See, e.g., Lucero v. Trosch, 121 F.3d 591

(11th Cir. 1997) (citing Schenck v. Pro-Choice Network, __

U.S. __, 117 S.Ct. 855 (1997), and Madsen v. Women's

Health Center, Inc., 512 U.S. 753 (1994), and utilizing anal-

ysis of whether injunction provisions burden more speech

than necessary to serve relevant government interests).

Indeed, this court champions the free expression rights of

the citizens of the State of Alabama and of the United

States, exercised, of course, in concert with other First

Amendment rights.

The court finds the portions of Plaintiffs’ Memoran-

dum In Opposition regarding Defendants’ likelihood of

success on the merits on appeal to be clear, concise,

© See note 3, supra.

Ck eS as |

App. 15

eminently well written, and most importantly, a correct

review of applicable law. Accordingly, the court adopts

those portions of Plaintiffs’ Memorandum In Opposition

as herein articulated:

The October 29 injunction should have come as

no surprise to anyone at all familiar with Estab-

lishment Clause jurisprudence. Public school

officials have long been prohibited by the Estab-

lishment Clause of the First Amendment to the

United States Constitution from inserting reli-

gious exercises into school activities. See, €.g.,

Lee v. Weisman, 505 U.S. 577 (1992) (prayer at

graduation assemblies); Edwards v. Aguillard, 482

U.S. 578 (1987) (requirement to teach “creation

science”); Wallace v. Jaffree, 472 U.S. 38 (1985)

(daily prayer in public school classrooms); Karen

b. v. Treen, 653 F.2d 897 (5th Cir.), aff'd per cur-

iam, 455 U.S. 913, 102 S.Ct. 1267, 71 L.Ed.2d 455

(1982) (classroom prayer by students or

teachers); Stone v. Graham, 449 US. 39 (1980)

(posting copy of Ten Commandments on public

school classroom walls); Epperson v. Arkansas,

393 U.S. 97 (1968) (statute prohibiting the teach-

ing of evolution); Abington Schl. Dist. v. Schempp,

374 U.S. 203 (1963) (Bible reading before class by

student volunteers); Engel v. Vitale, 370 U.S. 421

(1962) (nonsectarian prayer at beginning of

school day); Illinois ex rel. McCollum v. Board of

Educ., 333 U.S. 203 (1948) (religious instruction

on school property during school day).

App. 16

These unconstitutional school-sponsored

activities are not transformed into constitutional

activities by the involvement of willing stu-

dents. See Schempp, 374 U.S. 203 (student-led

devotional readings in the classroom); ACLU v.

Black Horse Pike Regional Bd. of Educ., 84 F.3d

1471 (3d Cir. 1996) (en banc) (student-initiated

prayer at graduation); Ingebretsen v. Jackson Pub-

lic Schl. Dist., 88 F.3d 274 (5th Cir.), cert. denied,

AS... .... SAX... FISSSY tatucent intti-

ated prayer at compulsory and noncompulsory

school sponsored events); Jager v. Douglas

County Bd. of Educ., 862 F.2d 824 (11th Cir.), cert.

denied, 490 U.S. 1090 (1989) (student-led prayers

and invocations at high school sporting events)8;

Hall v. Board of Schl. Comm'rs of Conecuh County,

656 F.2d 999 (5th Cir. Unit B 1981) (student-led

morning devotionals over the school intercom);

7 Ingebretsen, constrained by Jones v. Clear Creek Independent

School District, (5th Cir. 1992), held that “nonsectarian,

nonproselytizing student-initiated prayers” at graduation

ceremonies did not violate the Establishment Clause, while

simultaneously holding that those same prayers at all other

school-sponsored compulsory or noncompulsory activities did.

The Fifth Circuit is the only Circuit to adopt the graduation

ceremony exception to the Establishment Clause, and the Fifth

Circuit’s rule is directly defiant of Lee v. Weisman.

8 Although one might think that any claim of success on

appeal in the Eleventh Circuit would focus on the leading

Eleventh Circuit case, Jager v. Douglas County Board of Education,

862 F.2d 824 (11th Cir.), cert. denied, 490 U.S. 1090 (1989), Jager is

almost completely absent from the Attorney General's

discussion, making only a brief parenthetical appearance on

page 13 of the Motion for Partial Stay.

ils Bi as ah a 8 OT pe DA

a clit We rete a ead Con ots ew

App. 17

Collins v. Chandler Unified Schl. Dist., 644 F.2d

759 (9th Cir. 1981) (student-led prayer at school

assemblies); Karen B. v. Treen, 653 F.2d 897 (5th

Cir. 1981), aff'd per curiam, 455 U.S. 913 (1982)

(student-led prayers in the classroom).

The “free exercise” and “free speech” rights of

students do not trump the Plaintiffs’ rights to be

free of Establishment Clause violations. The

plaintiffs have argued this since the inception of

this case, and the court so found in citing Bar-

nette, Schempp, and Jager. None of this record

supports the Attorney General in what the

plaintiffs take to be a motion to stay premised

on the allegation that the injunction amounts to

viewpoint discrimination, and the pretense that

it does is at odds with the record.?

° This Court might well say, like the Ingebretsen court:

& ; &

The Attorney General’s . . . proffered secular purpose of prayer

at student sporting events - prohibiting viewpoint

discrimination — must be rejected out of hand. While the United

States Supreme Court has recognized that prohibiting

viewpoint discrimination may serve a secular purpose, see

Mergens, 496 U.S. at 248, 110 S.Ct. at 2370, the Attorney General

has not shown that any of the forums where student prayer is

authorized under the statute are open forums and that religious

groups have been denied access. The Mergens line of cases cited

by the Attorney General involves situations where religious

groups sought access to public school facilities and were denied

for fear that access to these facilities by religious groups would

violate the Establishment Clause. ... We are not faced with such

a situation here. Student assemblies, student sporting events,

graduation or commencement, and other school-related

activities ostensibly are not open forums in public schools. By

granting prayer an exalted status over other types of speech in

these forums, the state runs the grave risk of favoring one

religion over another or favoring religion over irreligion. See

App. 18

Relatedly, free speech rights are not abso-

lute. Where “the degree of captivity makes it

impractical for the unwilling viewer to avoid

exposure,” a speaker does not have the absolute

right to say exactly what he wants. Erznoznick v.

City of Jacksonville, 422 U.S. 205, 209 (1975).

While a speaker “clearly has a right to express

his views to those who wish to listen, he has no

right to force his message upon an audience

incapable of declining to receive it.” Lehman v.

City of Shaker Heights, 418 U.S. 298, 307 (1974)

(upholding a ban on political ads in rapid transit

cars based upon the captive audience). See also

Frisby v. Schultz, 487 U.S. 474, 487-88 (1988)

(allowing a city to limit picketing in front of

homes so as to protect persons from unwanted

speech while at home).

Students enjoy even less freedom to speak

their minds while under the supervision of the

public schools. In Bethel School District v. Fraser,

478 U.S. 675 (1980), cited by the Attorney Gen-

eral, the Court recognized that the free speech

rights of students are not co-extensive with the

free speech rights of adults. Id. at 682. The Fraser

Court also noted “the obvious concern on the

Board of Educ. of Kirvas Joel v. Grumet, 512 U.S. 687 (1994).

Ingebretsen, 864 F.Supp. at 1490.

The record here shows no instance in which a religious

group has ever been denied anything in DeKalb County. Quite

the opposite is true; the Gideons have been handed the

classrooms. The plaintiffs repeat, as they have argued

throughout this case, that violating the Establishment Clause is

not a free speech or free exercise right.

to PEO oat ea ae

App. 19

part of parents and school authorities . . . to

protect children — especially in a captive audience —

from exposure to” certain speech in school

assemblies. Id., 478 U.S. at 684 (emphasis

added). See Mem. Op., Mar. 12, 1997 at 21 (quot-

ing Fraser.)

Previously, in Tinker v. Des Moines Independent

School District, 393 U.S. 503 (1969), the Court

discussed the limitations on students’ rights to

speak freely: “[C]onduct by the student, in class

or out of class, which for any reason — whether

it stems from time, place or type of behavior —

materially disrupts classwork or involves sub-

stantial disorder or invasion of the rights of

others is, of course, not immunized by the con-

stitutional guarantee of freedom of speech.” Id.

at 513. See Mem. Op., Mar. 12, 1997 at 20 (quot-

ing Tinker). While the Supreme Court held that

the Tinker student had a First Amendment right

to enage [sic] in the activity at issue (the wear-

ing of a black armband), it first held that this

speech did not “impinge upon the rights of

other students.” 393 U.S. at 509.

The Jager court addressed the same concerns

raised by the Defendants in this case, and con-

cluded that student-initiated prayers, even at

“noncompulsory” events such as football games,

violate the Establishment Clause.

In Jager, the defendant high school had a

practice of permitting prayers and invocations

immediately prior to the high school’s home

football games. Jager, 862 F.2d at 826. The

prayers were explicitly Christian, “frequently

invok[ing] the name of Jesus Christ,” and were

delivered by members of the local Protestant

App. 20

clergy. Id. at 826, 841 n. 2. Since at least 1947,

these pregame prayers had been a part of the

defendant’s football season. Id. at 841 n. 2. In

response to complaints about the old policy, the

school developed a new policy:

All school clubs and organizations can designate

club members to give invocations and any stu-

dent, parent, or school staff member can seek to

deliver an invocation . . . the student govern-

ment will randomly select the invocation

speaker and no ministers will be involved in

selecting invocation speakers or in delivering

incovations. In addition, the schools will not

monitor the content of the invocations.

Jager, 862 F.2d at 827.!° Despite these innova-

tions, the Jager court still concluded that the

policy was in violation of the Establishment

Clause.

Lee indicates how right the Eleventh Circuit was 7

in Jager. The Supreme Court’s holding in Lee is

_ summarized in its last paragraph which, like the

vast majority of the decision, makes no refer-

ence to the fact that the prayer was offered by

clergy under some particular guidelines and

does not take into account the identity of the ;

speaker: |

:

.

The sole question presented is whether a reli-

gious exercise may be conducted at a graduation

5; ceremony in circumstances where, as we have

found, young graduates who object are induced

to conform. No holding by this Court suggests that

10 As noted earlier, this was not an official Douglas County }

School Board policy but rather, vested discretion in school

principals.

|

App. 21

a school can persuade or compel a student to partici-

pate in a religious exercise. That is being done here,

and it is forbidden by the Establishment Clause of

the First Amendment.

Id. at 599 (emphasis added). In short, the sole

relevant facts are the same here as in Lee: (1)

prayer in a school program, and (2) a coerced

plaintiff.

(Pls.’ Mem. In Opp’n at 32-38.) Based on the forego-

ing, the court finds that the first Hilton factor cuts against

the Defendants.1!

In addition, the other three Hilton factors strongly

favor Plaintiffs’ position. The second and third factors

essentially require the court to weigh the harm that

Defendants may incur absent a stay against the harm that

Plaintiffs may incur should a stay be granted. Defendants

argue that “the movants and other citizens of Alabama

are likely to suffer irreparable harm if this Motion is not

granted.” (Defs.’ Mot. at 2.) Closely associated with the

court’s analysis of the second and third factors are Defen-

dants’ contentions regarding the fourth factor: “whether

the granting of the stay would serve the public interest.”

Defendants argue that “the public interest would be

served by granting [a stay] in order that the status quo

may be preserved pending appeal.” (Defs.’ Mot. at 2.)

Essentially, the Attorney General argues that because he

reads the injunction as unduly limiting free expression

rights, the better path would be to preserve the status

‘1 The court addresses the hypotheticals proffered by the

Attorney General in support of his “likelihood of success on the

merits” argument, infra.

App. 22

quo pending appeal. Plaintiffs counter that “the status quo

has been an illegal state of affairs in DeKalb County,

Alabama.” (Pls.’ Opp’n at 6 (emphasis in original).)

As noted, the court finds that Defendants have not

shown a likelihood of success on the merits; specifically,

that the court’s Permanent Injunction does not unduly

burden free expression rights in its preservation of indi-

vidual liberties and proscription of state established reli-

gion. Additionally, throughout its previous Orders, the

court has expressed its findings that public policy favors

Plaintiffs in this action. The status quo, which the Attor-

ney General urges this court to continue, includes, but is

not limited to, state sponsored and officially sanctioned

religious activity in the DeKalb County schools. Indeed,

the Attorney General is not challenging the factual record

or thirty years of controlling precedent. (Defs.’ Reply at

2.) Nevertheless, by tying arguments urging preservation

of the status quo because of what the Attorney General

perceives to be an undue burden on free expression rights

with analysis under Hilton’s harm to the Defendants and

public interest factors, the Attorney General essentially

argues for preservation of majoritarian will. As the Attor-

ney General should know, however, the will of the major-

ity makes for sound argument in election disputes and

political grandstanding; not in the analysis of First

Amendment jurisprudence prohibiting officially sanc-

tioned religious activities that violate the First Amend-

ment.

At minimum, the status quo in DeKalb County vio-

lates the First Amendment's dictate that states “pursue a

course of complete neutrality toward religion.” Jager v.

Douglas County School Dist., 862 F.2d 824, 828 (11th Cir.

|

|

:

4

|

4

P|

|

|

|

App. 23

1989) (citing Wallace v. Jaffree, 472 U.S. 38, 60 (1985). 12

Further, the status quo violates the interests of those

counter-majoritarian citizens who choose to exercise reli-

gious beliefs, or who choose to not exercise religious

beliefs, by forcing upon them, in an official setting, reli-

gious beliefs and practices that they may find unwelcome

and that smack of state indorsement. The exercise of free

expression rights do not justify violations of the Estab-

lishment Clause. See, e.g., Bethel School District v. Fraser,

478 U.S. 575 (1980); Erznoznick v. City of Jacksonville, 422

U.S. 205 (1975); Lehman v. City of Shaker Heights, 418 U.S.

298 (1974); Tinker v. Des Moines Indep. Sch. Dist., 393 U.S.

503 (1969). Consequently, the court finds no merit in

Defendants’ argument that execution of the Permanent

Injunction will result in the harm anticipated by the

Defendants.

In addition, the court finds that absent execution of

the Permanent Injunction, Plaintiffs will most surely suf-

fer those harms that the Permanent Injunction specifically

endeavors to prevent. Defendants will continue to violate

Plaintiffs’ rights, as evidenced by their unwillingness to

comply with the court’s Permanent Injunction, or, for that

matter, with Supreme Court and Eleventh Circuit prece-

dent detailing proscribed activity. Despite Defendants’:

(1) admission that they are “not challenging the court’s

March 12, 1997 Memorandum Opinion, the factual record

'2 The Attorney General appears to recognize this

established principle of First Amendment jurisprudence. (See

Defs.’ Mem. In Supp. at 21-22 n. 6.)

App. 24

in this matter, or thirty years of controlling precedent,”

(Defs.’ Reply at 2); (2) admission that “educators within

Alabama's public schools [do not] have the right to sub-

ject students to unwanted religious indoctrination,”

(Defs.’ Reply at 7); and (3) recognition of the clear hold-

ing of the Eleventh Circuit in Jager, where, in the Attor-

ney General’s own words, “the court struck down a

school district practice of authorizing and organizing

invocations to be given prior to public high school football

games,” (Defs.’ Reply at 9 (citing Jager, 862 F.2d 814 (11th Cir.

1989)), Defendants’ actions indicate the contrary.

Two Declarations filed by the Plaintiffs on November

24, 1997,!3 to which the Defendants have notably failed to

respond, allege that the following occurred at a Novem-

ber 7, 1997 Sylvania High School football game:'4

1. At about 7:00 p.m., a voice came over the

P.A. The voice said there was someone there

who had a special message for us. A second

voice told us that a recent ruling had banned

prayer in school. He said that they wanted us to

help them send a message to the federal govern-

ment and the rest of the country. This voice also

said that he had the full support of Fob James,

the Governor of Alabama.

_

13 The Declaration of Susan Jane Neely was filed November

24, 1997. On the same date, Plaintiffs filed their “Supplemental

Opposition To ‘Defendants’ Motion to Stay,’ ” which contained

the hand-written statement of John Woodfin. Woodfin’s typed

and executed Declaration was filed December 5, 1997.

14 Sylvania High School is one of the public schools located

in DeKalb County, Alabama. The court’s Permanent Injunction

was issued October 29, 1997; the described activities occurred

subsequent to, and in specific defiance of, the injunction.

App. 25

2. All of the students were asked to go down to

the football field, join hands, and form a circle.

The stands cleared, as children from probably

kindergarten up to twelfth grade made their

way to the field. The circle stretched the width

and length of the field, and consisted of stu-

dents, band members, and cheerleaders. Then a

man, middle-aged, wearing glasses, and on

crutches because he only had one leg, walked to

the middle of the circle. He told all of the chil-

dren to get down on their knees and raise their

hands to heaven. He told them to raise their

hands up high because there might be someone

there who needed to see this. Next, he said that

they were going to pray to their god. There was

a brief moment of silence, and then the man led

these students in prayer, the Lord’s Prayer.

(See Neely Decl. ¥] 1, 2; see also Woodfin Decl.

(describing same activity).) In addition, Gary Carlyle,

Principal of Sylvania High School, wrote letters to both

the Montgomery Advertiser and the Birmingham News

that, at best, evidence misunderstanding of the terms of

the Permanent Injunction, and at worse, when read in

conjunction with the activities described in the Neely and

Woodfin Declarations, evidence deliberate defiance. (See

Pls.’ Supplemental Opp’n, Exs. A, A-1.)

Moreover, on November 4, 1997, the Governor of

Alabama - a Party to this action — issued a Statement

regarding the court’s Permanent Injunction. In this State-

ment, the Governor asserted that the children of the

nation’s founders “had the benefit of prayer in school,”

and after reiterating his desire that this court decline to

follow United States Supreme Court precedent and

instead follow the Governor’s interpretation of the

_$—SS ee

App. 26

United States Constitution, stated: “I will resist Judge

DeMent'’s order by every legal and political means with

every ounce of strength I possess.”' (See Pls.” November

6, 1997 Mot. To Enjoin Proceedings in the Etowah County

Circuit Ct., Ex. B. (emphasis added).)

Based on these explicit and implicit indicia of non-

compliance and purported and actual defiance of the law,

as well as the myriad media reports that have been called

to the court’s attention, of which the court takes judicial

notice, but on which the court does not rest its findings, it

is clear that DeKalb County has allowed prayer at a high

school football game in contravention of Jager and in

specific defiance of the Permanent Injunction, and that

the state chief-executive has promised political defi-

ance.’ It is clear that absent the Permanent Injunction

ee oe ae

1S For an extensive overview of the Governor’s unique

interpretation of the United States Constitution and his :

misguided opinion as to why lower federal courts are not bound b

by Supreme Court precedent, see the thirty- four page June 1997 eb

letter from Governor James to the court. In addition to the

record, the text of the letter may be viewed, as of December 15, iS

1997, via the Internet at tp://alaweb.asc.edu/govoff.html. See .

also Fob James, Jr., DeMent Followed High Court Deceit, .

Birmingham News, December 7, 1997, at 1C. |

It is indeed ironic, as Plaintiffs note, that Governor James

“simultaneously contend[s] that the Court has no jurisdiction

over the first amendment and then support[s] a stay of the

Court’s injunction on the ground that it infringes on students’

first amendment rights. . . . ” (Pls.’ Reply at 21-22.)

16 The court has no qualms regarding the Governor’s

promise of legal resistance to the court’s Orders, and indeed

encourages the pursuance of an appeal. Such is the proper

procedure for addressing and resolving purported

discrepancies in court orders.

EE

App. 27

remaining in effect, constitutional violations will con-

tinue, as indeed they have continued. Consequently,

Plaintiffs have and will continue to suffer significant

harms.

Contrary to majoritarian wishes, the State of Ala-

bama cannot establish an official religion, either explicitly

or implicitly, and officially-sanctioned religious activity

in public schools can and must be prohibited to protect

the rights of all of the citizens of Alabama.'7 On balance,

the court finds it more likely that Plaintiffs, and other

citizens, will be substantially injured by a stay of the

Permanent Injunction than that Defendants will suffer

irreparable harm as a result of the enforcement of the

Permanent Injunction. Accordingly, the court finds that

Hilton’s second and third factors cut against the Defen-

dants and that Hilton's public interest factor favors denial

of the Motion To Stay, as well.

'? The court suspects that if the Permanent Injunction

enjoined non-majoritarian religious, or for that matter atheist or

agnostic, beliefs and practices from being forced on school-

children in DeKalb county, certain state officials would be first

in line to seek enforcement of the court's Permanent Injunction.

Such religious prejudice is one of the reasons our forefathers left

England for America, and one of the reasons the First

Amendment prohibits state-established religion. (See November

1997 Supplemental Op. and Order at 60-61 n. 54); see also Engle,

370 U.S. at 432. “The right to be free from State-established

religion lies at the heart of the concept of “freedom of religion’

embodied in the First Amendment.” (November 1997

Supplemental Op. and Order at 61 n. 54 (citing Lee, 505 U.S. at

591).) “The individual’s freedom to choose his own creed is the

counterpart of his right to refrain from accepting the creed

established by the majority.” Wallace, 472 U.S. at 60.

App. 28

B. Interpretation Of The Permanent Injunction

The Defendants contend that the provisions of the

Permanent Injunction at issue are “facially unconstitu-

tional,” (Defs.’ Reply at 2 (emphasis in original)), and that

“facial challenges to government enactments must be

decided by reference to the contents of the restrictive

language in question.” (Defs.” Reply at 5.) Under the

Attorney General’s analysis, the court must look only to

the language of the Permanent Injunction itself (on its

face) in determining whether it passes constitutional

muster or whether the provisions are vague and over-

broad, as Defendants contend. (See generally Defs.’ Reply

at 2-6.) When so read, Defendants argue, “[t}hese provi-

sions .. . are facially unconstitutional, without regard to

this Court’s previous Orders or the factual basis from

which this case arose.” (Defs.’ Reply at 2 (emphasis in

original).)*§

18 Interestingly, the Attorney General also states that he

“does not dispute Plaintiffs’ contentions that the Permanent

Injunction should be read in light of this Court’s previous

rulings.” (Defs.’ Reply at 3.) The Attorney General then takes

the position that “the Permanent Injunction is inconsistent with

this Court’s previous rulings and controlling Supreme Court

precedent. For these reasons, Defendants believe that this Court

must stay those provisions of the Permanent Injunction which

were specified in Defendants [sic] Motion for Partial Stay.” (Id.)

Although not clear, the Attorney General appears to be arguing

that the challenged provisions of the Permanent Injunction are

unconstitutional on their face, or, when read in conjunction with

the court’s previous Orders, are inconsistent with those Orders,

and thus unconstitutional.

App. 29

Plaintiffs counter that the Defendants not only ignore

the plain language of the Permanent Injunction, (Pls.’

Opp’n at 10), but that the correct “ ‘inquiry should be

whether the parties subject to the injunction understood

their obligations under the order.’” (Pls.’ Opp

(quoting Combs v,. Ryan's Coal Co., 785 F.2d 970, 978-7

(11th Cir. 1986), cert. denied, 479 U.S. 853 (1986)).) Plain-

tiffs urge a reading of the Permanent Injunction in con-

text, and contend that when so read, the “proscriptions

are all specific and under the totality of the circumstances

give DeKalb County an extremely clear understanding of

the conduct that is Proscribed.” (Pls.’ Opp’n at 7.)

In contrast to Defendants’ argument that only the

face of the Permanent Injunction should be read in con-

struing its terms, the Eleventh Circuit noted in Combs

that:

A court may also disregard [a] defect [in an

injunction] if it is clear from the totality of the

language in the various documents that [those

enjoined] understood their obligations under

the injunction. United States v. Goehring, 742 F.2d

1323, 1324 (11th Cir. 1984) (per curiam) (Rule

65(d) not specifically invoked, but contempt

order upheld that incorporated earlier order

because later order “contains sufficient findings

of fact and conclusions of law for this court to

Perform its proper function and for the appel-

lant to clearly understand the basis for the con-

tempt order.”)

Combs, 785 F.2d at 978 (emphasis added). See also Lucero

v. Chadwick, 121 F.3d 191 (11th Cir. 1991) (citing Madsen v.

Women’s Health Center, Inc., 512 US. 753 (1994) (interpret-

ing injunction in light of the record before the court);

App. 30

NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982)

(reviewing the facts in the record before the court in

analyzing the remedial nature of an injunction). Notably,

the Attorney General fails to address or apply these hold-

ings. The court finds that when read in conjunction with

the court’s other Orders, or even when read facially, the

Parties enjoined understand their obligations under the

Permanent Injunction, and except as noted, infra, the

provisions of the Permanent Injunction challenged by the

Attorney General are constitutionally sound, are not

vague and overbroad, and are in conformance with

standing Supreme Court and Eleventh Circuit precedent.

In contrast to disagreeing about whether the Perma-

nent Injunction, as a whole, should be read standing

alone or in conjunction with other pleadings, the Parties

agree that internally, “the Injunction must clearly and

sufficiently delineate permissible and impermissible con-

duct.” (Defs.’ Reply at 9; Pls.’ Opp’n at 6 (“The parties

being enjoined have the right to know what activities are

prohibited”).) What is required is “the language of the

injunction to be as specific as possible under the totality

of the circumstances, such that a reasonable person could

understand what conduct is proscribed.” United States v.

Kaun, 827 F.2d 1144, 1153 (7th Cir. 1987); see also Howard

Johnson Co., Inc. v. Khimani, 892 F.2d 1512, 1516 (11th Cir.

1990) (utilizing “reasonable person” standard in inter-

preting provision of a district court’s permanent injunc-

tion and upholding finding of contempt); Fed.R.Civ.P.

65(d) (injunctions should “describe in reasonable

detail . . . the act or acts sought to be restrained”); (Defs.’

App. 31

Mem. In Supp. at 5 (citing to Connally v. General Const.

Co., 269 U.S. 385, 391 (1926) for the correlative Principle

that “a statute is void if persons of common intelligence

must necessarily guess at its meaning and differ as to its

application”) (emphasis added)). Rule 65 is not to be

applied strictly; the inquiry is whether the “parties sub-

ject to the injunctive order understood their obligations

under the order.” Williams v. City of Dothan, Ala., 818 F.2d

755, 761 (11th Cir. 1987) (citing Combs, 785 F.2d at 978-79).

The Attorney General asserts that “school adminis-

trators all across the state are questioning the meaning of

this Court’s Permanent Injunction.” (Defs.’ Reply at 3 n.

2.) This assertion is unsubstantiated by any supportive

filings, and noticeably fails to address the question of

whether the DeKalb County Board of Education and its

individual members understand its/their obligations

under the Permanent Injunction.!9 In contrast to the

Attorney General's unsupported, self-serving assertion,

the DeKalb County Board of Education (“School Board”),

the entity for which the Attorney General Purports to

speak, has submitted its “Report to Court of Counsel of

wide mass confusion in one forum - this court, but then States

that the Permanent Injunction applies only to DeKalb County in

another — the media. (See Attachment B, December 8, 1997 Press

Release from the Office Of The Attorney General (“AG

December 8, 1997 Press Release”) (stating that “many people in

Alabama mistakenly believe the recent federal injunction

Strictly regulates religious expression in every school in the

State, when in fact, these prohibitions only apply to the DeKalb

County school System”); see also, Pls.’ Add. Evid.)

|

App. 32

DeKalb County Board of Education, et al.” In that docu-

ment, the School Board, individually and acting as a

School Board, and the Superintendent, acting through

counsel, delineated their efforts “to comply with all open

orders of this court in good faith.” (DeKalb Sch. Bd.

Report To Ct. at 1.) Counsel for the School Board indi-

cated that the following activities had been undertaken

pursuant to the court’s previous Orders and the court's

Permanent Injunction:

(1) A September 30, 1997 in-service for princi-

pals, assistant principals and certain administra-

tive personnel of the DeKalb County School

System. (Id.)

(2) Distribution, at the September 30, 1997 in-

service, of a memorandum, composed by School

Board legal counsel, explaining the court’s

Orders and including a copy of the court’s

March 12, 1997 Memorandum Opinion and

Order. (Id. at 2.)

(3) The distribution of a memorandum con-

cerning “Student Prayer en mass During Lunch”

to all principals and other interested persons in

the DeKalb County School System on October 2,

1997. (Id.)

(4) The mailing of information to all principals,

teachers and administrative personnel concern-

ing questions involving religious activities in

school on October 21, 1997. (Id.)

(5) Submission of a memorandum concerning

“Religion in Schools” on October 24, 1997. (Id.)

(6) Distribution of documents entitled “Out-

line of Permanent Injunction of October 29,

1997, What the Board of Education Must Do,”

Pe eae ee eet ee

App. 33

and “Outline of Permanent Injunction of Octo-

ber 29, 1997, What We Can and Can’t Do” across

the DeKalb County School System and to any

interested citizen on October 29, 1997. (Id. at

5-6.)

(7) Distribution of a position paper or Novem-

ber 5, 1997. (Id. at 6.)

Additionally, the Report indicates that the School

Board and the Superintendent have undertaken the fol-

lowing in compliance with the Permanent Injunction:

October 30 - Memo to Superintendent outlining

Proposed in-service for principals.

October 31 - Principal’s in-service meeting.

Copies of the following given to each principal:

Permanent Injunction

Timeline of Major Required Activities

Riley Letter

Outline of Permanent Injunction

Copy of Alabama Code 16-1-20.3

November 4 - Letter to Gideon’s International

with copy of Permanent Injunction attached.

November 4 - Memo outlining conversation

with Mr. Jay Kaiman, Anti-defamation League.

November 6 - Memo to Superintendent outlin-

ing proposed meeting with local Gideons.

November 8 - Meeting with local Gideons.

Copies of Permanent Injunction distributed.

November 10 - Notification of Permanent

Injunction to all teachers.

App. 34

November 10 — Meeting with Association

Teacher Representatives, DeKalb County Educa-

tion Association.

November 12 —- Memo concerning proposed

meeting with Assistant Principals.

November 14 - Memo outlining discussion

points with Charles Haynes, First Amendment

Center.

November 14 —- Memo to all school [sic] asking

for names and addresses of all PTO officers.

November 18 ~ Letter to Plaintiff's [sic] Attor-

ney proposing candidates for monitor and copy

of “Finding Common Ground” for preview.

November 24 — Fax communication from First

Amendment Center.

November 25 - Board of Education approves

policy “Distribution of Literature — Student

Rights and Protection”. [sic]

November 25 — Copy of proposed policy mailed

to Plaintiff’s [sic] Attorney.

(DeKalb Sch. Bd. Report To Ct. at 3-4.)?°

20 The reporting Defendants further informed the court

that “substantial pressure has been exerted toward persons

attempting to comply with the orders of this court. The

defendants have experienced great criticism regarding their

position.” (DeKalb Sch. Bd. Report To Ct. at 4.) In addition to

copies of the distributed documents outlined above, copies of

representative articles, editorials, and letters published since

September 30, 1997 for and against the position of the reporting

Defendants were attached. (Id.)

The court notes the difficult position in which some

enjoined Defendants are placed by the provisions of the court’s

Permanent Injunction. Nevertheless, appointment or election to

public office does not justify imposition of Persona! or political

views contrary to established law. There is no doubt that some

of the criticism is heightened by political agitation. But, the

have found themselves “experienc[ing] reat criticism

regarding their Position” if they had complied with long-

of the December 4, 1997 Report To Court, along with its

attachments, evidence a concerted effort to not only rectify, but

to educate, inform, and to obey the law, like it or not. As counse!

for the School Board noted in an October 21, 1997 memorandum

to DeKalb County School System Principals, teachers, and

administrative Personne! addressing questions concerning

religious activity in school: “The school prayer case is bleeding

resources we desperately need. Our teachers need to recognize

this fact and §0vern themselves accordingly. .. . If you are not

please become Part of the solution and don’t become part of the

problem.” (DeKalb Sch. Bd. Report To Ct., October 21, 1997

Mem. at 7-8 (emphasis added).)

*1 Decisions of the former Fifth Circuit rendered prior to

October 1, 1981, constitute binding Precedent in the Eleventh

App. 36

of an injunction, the Harris court noted that “[a]n injunc-

tion does not prohibit those acts that are not within its

terms as reasonably construed.” Harris, 617 F.2d at 388. In

Schering Corp. v. Illinois Antibiotics Co., 62 F.3d 903 (7th

Cir. 1995), reh’g denied (Sept. 12, 1995), the Seventh Circuit

articulated why a reasonable construction is necessary:

“[T}he rule of strict construction of injunctions should not

be pressed to a dryly logical extreme. If narrow literalism

is the rule of interpretation, injunctions will spring loop-

holes ... and parties in whose favor injunctions run will

be inundating courts with requests for modification in an

effort to plug the loopholes.” Id. at 906. Equally apparent

is that unreasonable constructions and “narrow literal-

ism” will lead to precisely the type of hypothetical “loop-

holes” offered by the Attorney General as examples of the

Permanent Injunction’s infirmity. The terms of the court’s

Permanent Injunction must be read reasonably, logically,

and in their entirety; not in the selective splicing of words

and phrases that inundate the Attorney General’s Motion

and Memorandum In Support thereof.?? Following, is a

Circuit. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.

1981) (en banc).

22 The Attorney General appears to recognize the basic

maxim that particular words and phrases in any judicial order

or legislative enactment should ordinarily be read logically and

consistently with the other words and phrases in the same

sentence, paragraph, and/or Order, as applicable. In

Defendants’ Reply, the Attorney General cites United States v.

Kaun, 827 F.2d 1144 (7th Cir. 1987) “for the principle that the

injunction should be viewed under a totality of circumstances

through the eyes of a reasonable person.” (Defs.’ Reply at 4.)

Nevertheless, as Plaintiffs note, in challenging provisions of

the Permanent Injunction as vague and overbroad, the Attorney

General’s “examples are themselves vague, being spectres

App. 37

restatement of the challenged provisions of the Perma-

nent Injunction followed by a summarization of the

Attorney General’s objections. Except for the court’s anal-

ysis under section 6(e), the court’s analysis of the Attor-

ney General's objections follow this restatement and

summarization.

1. Section 6(a)

In its entirety, section 6(a) of the court’s Permanent

Injunction reads as follows:

(a) Regarding Classroom Activities and

Instructional Settings. The Defendants, and each

of them, are PERMANENTLY ENJOINED from

aiding, abetting, commanding, counseling,

inducing, ordering, procuring, or permitting

school organized or Officially sanctioned reli-

Slous activity in the classrooms of DeKalb

County schools including, but not limited to:

vocal prayer; Bible and religious devotional or

scriptural readings; distribution of religious

materials, texts, or announcements; and discus-

sions of a devotional /inspirational nature,

regardless of whether the activity is initiated,

led by, or engaged in by students.

This PERMANENT INJUNCTION DOES

NOT proscribe the educational use of religious

texts in the classroom to the extent that material

intended to induce fear and horror, rather than concrete factual

Situations.” (Pls.’ Opp’n at 9.) Certainly the majority of the

Attorney General’s “narrow literalism” is not in keeping with

Harris’ admonition to reasonably construe the terms of an

injunction or with the Attorney General’s own reading of Kaun.

ee

App. 38

so used is presented in an objective and aca-

demic manner, for example, as part of a course

of study.

This PERMANENT INJUNCTION DOES

NOT proscribe students’ voluntary expression

of their own religious beliefs in the form of

homework, reports, artwork, or other school

assignments as applicable and as academically

appropriate.

This PERMANENT INJUNCTION DOES

NOT proscribe the display of religious symbols,

articles and medals (for example, Crosses and

Stars of David) and/or clothing bearing reli-

gious messages (provided that the school allows

students to display non-religious expressive

symbols and apparel and such display is in

accordance with all applicable time, place, and

manner restrictions).

This PERMANENT INJUNCTION DOES

NOT affect the rights of secondary-school stu-

dents to engage in religious activity during non-

instructional time that is consistent with the

federal Equal Access Act, 20 U.S.C. Section 4071

et seq, or to quietly engage in religious activity

during noninstructional times, so long as it does

not unduly call attention thereto and so long as

it does not interfere with the rights of other

students to freely pass thereby or to avoid its

imposition upon themselves. This PERMANENT

INJUNCTION DOES NOT prohibit students

from distributing religious materials to class-

mates during noninstructional time, subject to

the same time, place, and manner restrictions

imposed on student distributions of non-

religious materials, subject to the provisions of

paragraph 6(e) below.

App. 39

(See Permanent Inj. at 3-4 (emphasis in Original).) Not

only a reasonable reading, but even a narrowly literal

reading, discloses that what this provision prohibits is:

(1) School organized or officially sanctioned reli-

gious activity in the classrooms of DeKalb

County schools including, but not limited to

vocal prayer.

(2) School organized or officially sanctioned reli-

gious activity in the classrooms of DeKalb

County schools including, but not limited to

Bible and religious devotional or scriptural

readings.

(3) School organized or officially sanctioned reli-

gious activity in the classrooms of DeKalb

County schools including, but not limited to

distribution of religious materials, texts, or

announcements.

(4) School organized or officially sanctioned reli-

gious activity in the classrooms of DeKalb

County schools including, but not limited to

discussions of a devotional /inspirational

nature, regardless of whether the activity is ini-

tiated, led by, or engaged in by students.

Clearly, this provision enjoins school organized, or

officially sanctioned religious activity.23 As other provi-

sions of the Permanent Injunction clearly articulate,

*3 The Attorney General admits that he is not challenging

“the Permanent Injunction’s proscriptions with regard to school

sponsored, officially organized religious activity,” and that “[t}his

law is settled.” (Defs.’ Reply at 10 (emphasis in original).)

Nevertheless, the Attorney General then proceeds to challenge

section 6(a), which a literal reading discloses merely enjoins

“school organized or officially sanctioned religious activity.”

(Permanent Inj. At 3.)

App. 40

students are free to engage in any or all of these activ-

ities as long as they are not school organized or offi-

cially sanctioned. For example, as the court took pains to

note, the Permanent Injunction does not proscribe: (1) the

educational use of religious texts in the classroom to the

extent that the material is presented in an objective and

academic manner; (2) students’ voluntary expression of

their own religious beliefs in the form of various school

assignments as applicable and as academically appropri-

ate; (3) the display of religious symbols or clothing bear-

ing religious messages consistent with a school’s

applicable time, place and manner restrictions; (4) sec-

ondary-school students from engaging in religious activ-

ity during noninstructional time consistent with the

Equal Access Act; (5) secondary-school students from

“quietly engaging] in religious activity during non-

instructional times, so long as it does not unduly call

attention thereto and so long as it does not interfere with

the rights of other students to freely pass thereby or to

avoid its imposition upon themselves” (Permanent Inj. at

4);24 and (6) student distribution of religious materials to

24 The Attorney General particularly objects to the word

“quietly” and the phrase “so long as it does not unduly call

attention thereto” in one paragraph of section 6(a) as unduly

vague and in violation of Tinker v. Des Moines School District, 393

U.S. 503 (1969). (Defs.’ Mem. In Supp. at 8.) Specifically, Tinker

provides that proscriptions be tailored to “the requirements of

appropriate discipline in the operation of the school.” Id. at 509.

In context, these words are part of section 6(a)’s

proscription of school organized or officially sanctioned

religious activity. They are stated in the fourth of four

paragraphs detailing what the Permanent Injunction does not

proscribe. They are part of the court’s notation that “[t]his

PERMANENT INJUNCTION DOES NOT affect the rights of

App. 41

classmates during noninstructional time, subject to the

Same time, place and manner restrictions imposed on

secondary-school students to engage in religious activity during

noninstructional time that is consistent with the federal Equal

Access Act... , or to quietl engage in religious activity during

noninstructional times, so lon -as it does not unduly call

rights of other students to freely pass thereby or to avoid its

imposition upon themselves.” (Permanent Inj. at 4 (italics in

noninstructional times, and such policy is enforced consistently,

regardless of the content of the conduct being proscribed.”

infringe on the rights of others. See Tinker, 393 U.S. at 513.

The Parties are put on notice, however, that inconsistent

enforcement of school rules that work to favor religious conduct

App. 42

student distributions of nonreligious materials.> Not

only a reasonable, but a literal reading of the terms of

section 6(a) show a clear delineation between “school

organized or officially sanctioned religious activity,” (Perma-

nent Inj. at 3), and non-school organized, non-officially

sanctioned student conduct.

Nevertheless, the Attorney General contends that

under his reading of section 6(a), the following could be

prohibited:

(1) Discussions in a history class dealing with

the contributions of historical figures to modern

day society. (Defs.’ Mem. In Supp. at 5.)

over other religions or non-religion. The First Amendment

requires the government to remain strictly neutral among

religions and between religion and non-religion. Jager, 864 F.2d

at 828. Further, as the Tinker court noted: “[C]londuct by the

student, in class or out of class, which for any reason -

whether it stems from time, place or type of behavior -

materially disrupts classwork or involves substantial disorder

or invasion of the rights of others is, of course, not immunized

by the constitutional guarantee of freedom of speech.” Tinker,

393 U.S. at 513 (emphasis added).

25 Here, the Permanent Injunction refers readers to section

6(e), where the court requires DeKalb County to promulgate “a

written policy of general application for all DeKalb County

public schools . . . to govern such distributions in terms of time,

place, and manner restrictions.” (Permanent Inj. at 9.) In 6(e),

the court reemphasizes that the Permanent Injunction “DOES

- NOT prohibit student distribution of religious materials to

classmates during noninstructional time, subject to the same

time, place and manner restrictions imposed on student

distribution of nonreligious materials.” (Permanent Inj. at 10.)

App. 43

(2) Discussions of the meaning or origin of

certain state-recognized holidays. (Id. at 1, 6.)

(3) Bible reading and discussion among stu-

dents in a study hall or homeroom period, even

if not disruptive of the classroom setting. (Id.;

Defs.’ Reply at 11.)

(4) Student-initiated Bible club meetings on

campus after school hours. (Id. at 7.)

(5) Students praying before lunch. (Defs.’

Reply at 12.)

(6) A student giving a flyer to another student

about an event at his church or youth group.

2. Section 6(b)

In its entirety, section 6(b) of the court’s Permanent

Injunction reads as follows:

(b) Regarding Graduation or Commencement

Exercises. The Defendants, and each of them,

are PERMANENTLY ENJOINED from aiding,

abetting, commanding, counseling, inducing,

ordering, procuring, participating in, or permit-

ting, prayers, invocations, benedictions, or

devotional messages at graduation or com-

mencement exercises, regardless of whether

such prayer, invocation, benediction, or devo-

tional message is offered by clergy, a student,

administrator, teacher, school employee, or non-

school person, regardless of how such prayer,

invocation, benediction, or devotional message

is denominated, and regardless of whether a

public-address system is used. The Defendants,

and each of them, are specifically PERMA-

NENTLY ENJOINED from permitting such

App. 44

activity at commencement or graduation exer-

cises in the guise of valedictory, salutatory, his-

torian, or similar student addresses and

remarks.

This PERMANENT INJUNCTION DOES

NOT proscribe a brief personal expression by a

student which contains religious references dur-

ing a commencement exercise or student

address (for example, a student may express

thanks to Deity for his or her academic suc-

cess),26 provided that such expression is not

encouraged in any way by school officials and

does not invite audience participation or

response (for example, a student speaker may

not invite the audience to participate with him

or her in prayer or urge the audience to take a

moment with him or her to thank Deity). Where

enjoined activity by students occurs, it is CON-

SIDERED that school officials be and they are ;

hereby ORDERED to take appropriate disciplin-

ary action as they would for any violation of fe

school disciplinary rules, said disciplinary

action being calculated to cause the cessation of

the violative conduct as it occurs and to deter

similar conduct in the future.

The Defendants, and each of them, are fur-

ther PERMANENTLY ENJOINED from listing,

announcing, or memorializing any religious

26 This is but one example of a brief permissible reference

by a student to Deity or religion. This example is not meant by

the court to suggest any form of expression to any student or to

suggest that this is the only such reference that would be

permissible. It is intended to be illustrative only, and to assist

school officials in complying with the terms of this

PERMANENT INJUNCTION. (Permanent Injunction at 5, n. 1.)

App. 45

activity or message on any commencement pro-

gram at any DeKalb County school. The Defen-

dants, and each of them, are specifically

PERMANENTLY ENJOINED from printing bac-

calaureate announcements or commemorations

or other materials regarding baccalaureate ser-

vices on the commencement Programs of

DeKalb County public schools and from orga-

nizing or sponsoring any baccalaureate event

(although they may attend). School Officials are

prohibited from encouraging or discouraging,

directly, or indirectly, a student’s attendance at

baccalaureate services. Specifically, school offi-

cials may not condition a student's attendance

at commencement exercises on attendance at

baccalaureate events.

(See Permanent Inj. at 4-6 (emphasis in original).)

Prohibited under section 6(b) are:

(1) Prayers, invocations, benedictions, or devo-

tional messages at graduation or commence-

ment exercises.

(2) Such activity in the guise of valedictory,

Salutatory, historian, or similar student

addresses and remarks.

(3) The listing, announcing, or memorializing

of any religious activity or message on any com-

mencement program at any DeKalb County

school.

(4) The printing of baccalaureate announce-

ments or commemorations or other materials

regarding baccalaureate services on the com-

mencement programs of DeKalb County public

schools.

App. 46

(5) The organization or sponsorship of any

baccalaureate event by school officials.

(6) School officials encouraging or discourag-

ing, directly or indirectly, a student's attendance

at baccalaureate services.

(7) School officials conditioning a student's

attendance at commencement exercises on atten-

dance at baccalaureate events.

Prayers, invocations, benedictions, or devotional

messages at graduation or commencement exercises are

prohibited regardless of whether offered by clergy, a stu-

dent, administrator, teacher, school employee, or non-

school person, regardless of how denominated, and

regardless of whether a public-address system is used.

When violations occur, school officials are directed to

take “appropriate disciplinary action as they would for

any violation of school disciplinary rules.” (Permanent

Inj. at 6.)

Again, the court took pains to note what section 6(b)

does not proscribe:

(1) A brief personal expression by a student

which contains religious references during a

commencement exercise or a student address

that is not encouraged by school officials and

that does not invite audience participation or

response.?7

27 The court specifically noted that a student may express

thanks to Deity for academic success and emphasized that the

court was not suggesting that this was the only such reference

that would be permissible. The court’s example was meant to be

“illustrative only,” and articulated to “assist school officials in

App. 47

The Attorney General contends that section 6(b) is

vague, (Defs.’ Mem. In Supp. at 9; Defs.’ Reply at 12), and

under his reading of section 6(b), a student valedictorian

could be prohibited from explaining why Mother Teresa

was an inspiration for his or her success. (Defs.’ Reply at

12.) The Attorney General also contends that when he

reads section 6(b) literally, it: (1) could require the school

to “police all in attendance” (Defs.’ Mem. In Supp. at 9);

(2) discriminates against private religious speech based

on its content and viewpoint (Id. at 9-11); (3) would lead

to school officials censoring a student graduation

speaker’s thoughts before a speech was given (Defs.’

Mem. In Supp. at 2); (4) violates the Establishment Clause

by requiring state entanglement with religion (Id. at

11-12); and (5) violates Supreme Court and Eleventh Cir-

cuit precedent. (Id. at 12-14.)

3. Section 6(c)

In its entirety, section 6(c) of the court's Permanent

Injunction reads as follows:

(c) Regarding Use of Public-Address Systems

for Religious Addresses. The Defendants, and

each of them, are PERMANENTLY ENJOINED

from aiding, abetting commanding, counseling,

inducing, ordering, procuring, Participating in,

complying with the terms of this PERMANENT INJUNCTION.”

(Permanent Inj. at 5 n. 1 (emphasis in original).)

The court also explained that the permissible “personal

expression by a student... . may not invite the audience to

participate with him or her in prayer or urge the audience to

take a moment with him or her to thank Deity.” (Permanent Inj.

App. 48

or permitting, students, school employees,

school officials, clergy, and nonschool persons to

pray or to deliver religious or devotional mes-

sages (including scriptural readings) over any

public-address system during the instructional

day (including the home room period) or in

connection with any school-sponsored event,

including, but not limited to, assemblies and

sporting events. This provision includes the

delivery of daily announcements. No exception

to this provision shall be permitted during times

of perceived crisis or exigent circumstances.

Where enjoined activity by students occurs, it is

CONSIDERED that school officials be and they

are hereby ORDERED to take appropriate disci-

plinary action as they would for any violation of

school disciplinary rules, said disciplinary

action being calculated to cause the cessation of

such violative conduct as it occurs and to deter

similar conduct in the future.

This PERMANENT INJUNCTION DOES

NOT prohibit students from making announce-

ments over the school public-address system

regarding meetings of noncurricular religious

clubs, provided that the announcements them-

selves do not contain a prayer or devotional,

and provided that any such announcements are

subject to the same time, place, and manner

restrictions that apply to announcements of non-

religious activities.

(Permanent Inj. at 6-7 (emphasis in original).) Activ-

ity prohibited under section 6(c) include:

(1) The delivery of prayers, religious or devo-

tional messages (including scriptural readings)

over any public-address system during the

instructional day, including: the home room

iain iii

App. 49

period, the delivery of daily announcements,

and in connection with any school-sponsored

events.

When violations by students occur, school Officials

are directed to “take appropriate disciplinary action as

they would for any violation of school disciplinary

rules.” (Permanent Inj. at 7.)

The court specifically noted that students could make

announcements over a school Public-address system

“regarding meetings of noncurricular religious clubs,

provided that the announcements themselves do not con-

tain a prayer or devotional, and Provided that any such

announcements are subject to the same time, place, and

manner restrictions that apply to announcements of non-

religious activities.” (Permanent Inj. at 7.)

The Attorney General contends that 6(c)’s restrictions

regarding the use of school public address systems for

religious addresses are unconstitutional because they are

vague and overbroad. (Defs.’ Mem. In Supp. at 14-15.)

Under his reading of this provision: (1) “Muhammad Ali

would not be able to address the student body and share

his life’s [sic] story;” and (2) “school officials would be

required to censor all student speeches which occur as

part of any school assembly.” (Defs.’ Mem. In Supp. at 2.)

4. Section 6(d)

In its entirety, section 6(d) of the court’s Permanent

Injunction reads as follows:

(d) Regarding School-S onsored Assemblies

and Events. The Defendants, and each of them,

are PERMANENTLY ENJOINED from aiding,

App. 50

abetting, commanding, counseling, inducing,

ordering, procuring, or otherwise participating

in, or permitting, prayers, Biblical and scriptural

readings, and other presentations or activities of

a religious nature, at all school-sponsored or

school-initiated assemblies and events (includ-

ing, but not limited to, sporting events), regard-

less of whether the activity takes place during

instructional time, regardless of whether atten-

dance is compulsory or noncompulsory, and

regardless of whether the speaker/presenter is a

student, school official, or nonschool person.

This PERMANENT INJUNCTION DOES

NOT prevent secondary-school students from

engaging in religious expression and activity

during noninstructional time that is consistent

with the federal Equal Access Act, 20 U.S.C.

Section 4071 et seq, which, while according stu-

dents expressive rights, does not allow school

officials to provide special privileges to noncur-

ricular student religious clubs in terms of meet-

ings and assemblies that they do not provide to

other student clubs.

(Permanent Inj. at 7-8 (emphasis in original).) Section 6(d)

prohibits:

(1) Prayers, Biblical and scriptural readings,

and other presentations or activities of a reli-

gious nature, at all school-sponsored or school-

initiated assemblies and events, regardless of

whether the activity takes place during instruc-

tional time, whether attendance is compulsory

or noncompulsory, and regardless of the

speaker.

The court noted that the Permanent Injunction did

not interfere with the Equal Access Act, and specifically

App. 51

noted that the Act accords students expressive rights but

“does not allow officials to Provide special privileges to

noncurricular student religious clubs in terms of meet-

ings and assemblies that they do no provide to other

student clubs.” (Permanent Inj. at 8.)

Section 6(d) is challenged because the Attorney Gen-

eral reads its provisions to be “grossly overbroad” and

“literally would prevent: (1) a parent from praying

silently in the stands at a football game” (Defs.’ Reply at

13); (2) “a group of football players gathering together

before a school game to pray” (Defs.’ Mem. In Supp. at

15-16); (3) “a football player who scores a touchdown

during a game from kneeling down in the endzone to

pray” (Id. at 16); and (4) the singing of “Silent Night” and

other songs at a school Christmas play or concert. (Id.)28

*8 After a detailed search of the Permanent Injunction, the

March 1997 Memorandum Opinion and Order, the November

1997 Memorandum Opinion and Order, and the November 1997

Supplemental Opinion and Order, the court can find no

reference to a ban on the singing of “Silent Night” or other

songs at a school Christmas play or concert. Any school

sponsored or officially sanctioned activity must simply comport

with standing Supreme Court and Eleventh Circuit law, as well

as the terms of the court's Permanent Injunction. Clearly read,

section 6(d) prohibits such activities that are primarily of a

“religious nature.” As section 6(a) notes, the expression of

religious material in an objective, academically appropriate

manner is clearly permissible. And, as section 6(c) notes,

“religious or devotional” messages may not be delivered over a

public address system during the instructional day. Section 6(d)

merely proscribes the delivery of such officially sanctioned,

content-focused messages in school-sponsored assemblies and

events.

App. 52

5. Section 6(e)

In its entirety, section 6(e) of the court’s Permanent

Injunction reads as follows:

(e) Regarding Distribution of Bibles and Other

Religious Tracts. The Defendants, and each of

them, are PERMANENTLY ENJOINED from

aiding, abetting, commanding, counseling,

inducing, ordering, procuring, or otherwise per-

mitting, school officials or nonschool persons to

enter any classroom or any school property

where students are assembled, for the purpose

of distributing Gideon Bibles or other religious

tracts, literature, or paraphernalia to students on

school property during the school day, includ-

ing the home room period and any period dur-

ing which students are required to be present in

school, or at any school-sponsored event.

No distribution of Gideon Bibles or other

religious tracts, literature, or paraphernalia by

placement of them in a common area shall occur

in the absence of a formal, written policy

adopted by the DeKalb County Board of Educa-

tion governing distribution of materials from

nonschool persons in DeKalb County public

schools generally.

It is further CONSIDERED that Defendants

be and the same are hereby ORDERED that

within thirty (30) days of the date of this PER-

MANENT INJUNCTION, Defendants shall pro-

mulgate a written policy of general application

for all DeKalb County public schools, binding

upon all school principals, teachers, and other

school employees uniformly in each public

school in DeKalb County, to govern such distri-

butions in terms of time, place, and manner

App. 53

restrictions; and Defendants shall serve a copy

of the same upon Plaintiffs’ counsel, who,

within ten (10) days, shall list any objections,

and shall submit the same to this court for its

rejection or concurrence. Following court

approval, the Defendants shall publish and shall

distribute to each school principal a copy of the

written policy, with instructions that it shall be

followed in each DeKalb County public school.

It is further CONSIDERED that Defendants

be and the same are hereby ORDERED to pro-

vide immediately to the Gideons International

representatives who are known by them to have

visited DeKalb County schools, or to their desig-

nated organizational representative, a copy of

this PERMANENT INJUNCTION.

It is further CONSIDERED that Defendants

be and the same are hereby ORDERED to inform

the organization in writing, immediately, that

students shall not be harassed with regard to

acceptance or nonacceptance of any Gideon

Bibles that may occur while its representatives

are situated on public property near the school,

(such as the public sidewalk), if students who

are approached for distribution are still situated

on or boarding school property, and that they

shall not throw or pass Gideon Bibles through

the windows or doors of DeKalb County school

buses or otherwise act in an aggressive manner

toward students with regard to any distribution

of Gideon Bibles while those students are still

situated on school property (for example, stand-

ing in line in the school parking lot to board the

bus and still under school officials’ general

Supervision and protection, or boarding the

public school bus).

App. 54

It is further CONSIDERED that Defendants

be and the same are hereby ORDERED to send a

copy of this written notification to Plaintiffs’

counsel and to file a copy with the court.

It is further CONSIDERED that Defendants

be and the same are hereby ORDERED to follow

the exact steps enumerated herein for any non-

school group or person other than the Gideons

International that wishes to have access to stu-

dents for the purpose of distributing Bibles, reli-

gious tracts, religious literature, or religious

paraphernalia.

In the event of a violation of this PERMA-

NENT INJUNCTION, and in the event of

aggressive or harassing behavior of the sort pro-

scribed herein, school officials shall take action

to cause the violative conduct to cease imme-

diately.

This PERMANENT INJUNCTION DOES

NOT prohibit students from distributing reli-

gious materials to classmates during noninstruc-

tional time, subject to the same time, place and

manner restrictions imposed on student distri-

butions of nonreligious materials.

(Permanent Inj. at 8-11 (emphasis in original).)

The Attorney General challenges section 6(e), con-

tending that it “violates the Gideon’s right to distribute

religious literature in a traditional public forum without a

compelling state interest.” (Defs.’ Mem. In Supp. at 17; see

also Defs.’ Reply at 16-21.) Plaintiffs contend that the

Attorney General does not have standing “to challenge

the alleged chilling of the Gideons’ alleged free-speech

rights.” (Pls." Opp’n at 30.) This, Plaintiffs argue, “is the

Gideons’ burden.” (Id.) The Attorney Genera! counters

App. 55

that he does have standing because: (1) “the Attorney

General has both a legal right and an obligation to defend

the constitutional rights of the citizens of Alabama”

(Defs.’ Reply at 14); (2) “the Attorney General has sworn,

under oath, to abide by the laws of the Siate of Alabama

and the United States, and at all times to secure their

enforcement” (Id. at 15); (3) as “a named party to this

lawsuit... the Attoraey General has every right to raise

vagueness/overbreadth issues which arise in the course

of this litigation” (Id.); and (4) the Attorney General rep-

resents the State and DeKalb County Boards of Educa-

tion, the Permanent Injunction requires these Parties to

take steps which the Attorney General contends “will

chill the free speech rights of a party,” and “[cJonse-

quently, the Attorney General has standing, on behalf of

his clients, and himself individually, to raise the Gideon’s

free speech rights.” (Id.)

Although the court has doubts regarding the Attor-

ney General's ability to speak for the Gideons, see Lucero,

121 F.3d at 605 n. 25 (quoting Madsen, 512 U.S. at 775-77

(“[Defendants] themselves are named parties in the order,

and they therefore lack standing to challenge a portion of

the order applying to persons who are not parties”)),

regardless of the standing issue, a reasonable and literal

reading clearly shows that section 6(e) merely prohibits:

(1) School officials or nonschool persons from

entering any school property where students are

assembled, for the purpose of distributing Gid-

eon Bibles or other religious tracts, literature, or

paraphernalia to students on school property

during the school day or at any school spon-

sored event.

App. 56

(2) The distribution of Gideon Bibles, religious

tracts, literature, or paraphernalia by placement

in a common area absent a “tormal, written

policy . . . governing distribution of materials

from nonschool persons in DeKalb County pub-

lic schools generally.” (Permanent Inj. at 8-9

(emphasis added).)

As noted above, section 6(e) specifically emphasizes

that the Permanent Injunction “DOES NOT prohibit stu-

dents from distributing religious materials to classmates

during noninstructional time, subject to the same time,

place and manner restrictions imposed on student distri-

butions of nonreligious materials.” (Permanent Inj. at 11

(emphasis in original).) In its November 1997 Supplemen-

tal Opinion and Order, the court also stated that:

The court does not wish by the terms of its

injunction to discriminate against the Gideons

International. The court does not intend by its

injunction to single out the Gideons for discrim-

inatory treatment or to infringe upon their free-

speech rights. By the same token, the court is

disturbed by the absence of uniform regulation

by school officials and the ‘gap’ this leaves in

the delicate area of the interplay between the

rights of nonschool persons and students. It is

for this reason that the court’s injunction makes

reference to the location of students. The court if

takes it as a simple truism that, where the public

schools are concerned, adult nonschool persons

cannot harass or act aggressively toward stu-

dents in regard to distributing any materials, :

religious or otherwise. Such conduct would not :

be reasonable in time, place and manner. .

(November 1997 Supp. Op. And Order at 51-52.)

App. 57

Section 6(e) also requires the following:

(1) A promulgated, written policy applicable

in all DeKalb County public schools governing

distributions in terms of time, place, and man-

ner restrictions.

(2) Publication and distribution of a written

copy of such policy with instructions that it

shall be followed to each school Principal, with

instructions that it shall be followed in each

DeKalb County public school.

(3) Thata copy of the Permanent Injunction be

provided to the Gideons.

(4) That the Gideons be informed in writing

“that students shall not be harassed with regard

to acceptance or nonacceptance of any Gideon

Bibles that may occur while its representatives

are situated on public Property near the

school . . . if students who are approached for

distribution are still situated on or boarding

school property. . . . ” (Permanent Inj. at 10

(emphasis in original).)

(5) That the Gideons be informed additionally,

that “they shall not throw or pass Gideon Bibles

through the windows or doors of DeKalb

County school buses or otherwise act in an

aggressive manner toward students with regard

to any distribution of Gideon Bibles while those

Students are still situated on school prop-

erty. ...” (Permanent Inj. at 10.)29

29 The court specifically noted that “still situated on school

Property” meant, for example, while students were

-.. “standing in line in the school parking lot to board the bus

and still under school officials’ genera! supervision and

App. 58

(6) That the same steps be followed “for any

nonschool group or person other than the Gid- -

eons International that wishes to have access to

students for the purpose of distributing Bibles,

religious tracts, religious literature, or religious

paraphernalia.” (/d.)

(7) That school officials “take action to caus-

e... violative conduct to cease immediately” in

the event of violations of the injunction and in

the event of “aggressive or harassing behavior

of the sort proscribed herein.” (Id.)

Regardless of the standing issue, on November 18,

1997, the Superintendent of Education for the DeKalb

County Board of Education provided to the court a copy

of a November 4, 1997 correspondence sent to the Gid-

eons International. The Superintendent informed the

court that, in addition to sending such correspondence to

the Gideons International, he had met with local leaders

of the Gideons International “to present the injunction

and answer questions.” (November 18, 1997 Correspon-

dence from Superintendent of Educ. to the court, Attach-

ment A.)39° On November 25, 1997, Plaintiffs filed a

pleading indicating the DeKalb County Board of Educa-

tion’s compliance with section 6(e). The substance of the

correspondence from the DeKalb County Board of Educa-

tion to the Gideons International reads as follows:

Please find attached to this letter a copy of a

permanent injunction issued by Judge Ira

protection, or boarding the public school bus.” (Permanent Inj.

at 10.)

30 This information was also reported in the DeKalb School

Board’s December 4, 1997 Report To Court.

App. 59

DeMent of the United States District Court for the

Middle District of Alabama, Northern Division.

Judge DeMent has ordered that you be pro-

vided with a copy of this injunction and that

you be informed that students shall not be

harassed with regard to acceptance or nonaccep-

tance of any Gideon Bibles while Gideon repre-

sentatives are situated on public property near

the school, and that Gideons shall not throw or

pass Gideon Bibles through the windows or

doors of school buses or otherwise act in an

aggressive manner toward students with regard

to any distribution of Gideon Bibles while those

students are still situated on school property.

(See November 4, 1997 Correspondence from DeKalb

County Bd. of Educ, Superintendent of Educ. to the Gid-

eons International, Pls.’ Notice of Compliance, Ex. A.)

Further, on December 2, 1997, Plaintiffs filed their

“Notice Of No Objection To DeKalb County Board Of

Education’s Policy Regarding Distribution Of Materials

By Nonschool Persons.” (“Pls.’ Notice of No Objection”).

Plaintiffs state that “they have confirmed in a conversa-

tion with DeKalb County counsel that the policy pro-

posed . . . as to distribution of nonschool materials was in

fact adopted by the DeKalb County Board of Education

last week.” The policy reads as follows:

Distribution of Literature

Student Rights and Protection

The DeKalb County School Board of Educa-

tion recognizes the right of students to distrib-

ute literature on public school property, subject

to reasonable time, place and manner restric-

tions imposed by the school. Such restrictions

App. 60

should be reasonable and must apply evenly to

all nonschool student distributed literature.

DeKalb County schools may prohibit the

distribution of literature that is obscene, defam-

atory, or disruptive of the educational environ-

ment.

The DeKalb County Board of Education pro-

hibits the distribution by DeKalb County school

board employees and nonschool individuals of

commercial, political, religious or promotional

materials to students on public school property.

(Pls.’ Notice of No objection, Ex. A, proposed policy for

literature distribution.)

Clearly, the DeKalb County Board of Education

understood its obligations under section 6(e) of the Per-

manent Injunction. Not only did DeKalb County comply

with those provisions addressing the Gideons Interna-

tional, it also complied with those provisions requiring

the promulgation of a written policy governing the distri-

bution of materials in DeKalb County schools. In corre-

spondence dated November 25, 1997, the Superintendent

of Education for DeKalb County stated that “[o]n Page 9

of the Permanent Injunction, provisions are made for a

review and the listing of any objection within ten days. I

will wait for Court approval, and possible revision,

before officially implementing this policy in DeKalb

County Schools.” (Id.) Based on the foregoing, the court

finds that, without addressing the propriety of section

6(e), the substantive provisions therein have been sub-

stantially complied with, and any objections relating

thereto are accordingly moot.

App. 61

6. Section 7

In essence, section 7 of the Permanent Injunction

requires the following:

(1) The distribution of the court’s opinions and

Permanent Injunction to school Principals in

DeKalb County with instructions that each prin-

cipal inform faculty, staff and students that the

court requires compliance. (Permanent Inj. at

12.)

(2) That in each DeKalb County public school,

a copy of the Permanent Injunction be made

available or posted in areas commonly utilized

for communicating notices or information to

both students and faculty until the Permanent

Injunction expires. (Id.)

(3) That a copy of “The Riley Letter” and a

copy of the monograph entitled “Religion in the

Public Schools: A Joint Statement of Current

Law” remain available in each DeKalb County

public school library until expiration of the Per-

manent Injunction. (Id.)

(4) That copies of the court’s Opinions and Per-

manent Injunction, together with a notice speci-

fically articulated in the Permanent Injunction,

be provided to groups organized for parental

Participation in school affairs at each DeKalb

~ County public school. (Id. at 12-13.)

(5) That during the 1997-98 school year, Defen-

dants conduct an in-service training session for

faculty and administrators in DeKalb County

public schools that is “reasonably designed to

familiarize these school officials with the provi-

sions of this Permanent Injunction, the general

App. 62

contours of Establishment Clause and Free Exer-

cise principles as the court has explained them

in its opinions in this case, their rights and

duties in connection with the controlling law of

church and state relations in the public-school

setting, and the general issue of school officials’

tolerance for diversity in religious opinion and

duty of neutrality in matters of religion when

acting in their official capacities.” (Id. at 13.)

(6) That Defendants direct all new faculty and

administrators not present for the 1997-98 in-

service training to acknowledge in writing that

they have read the curricular/teaching materials

used at the 1997-98 in-service session. (/d.)

(

This text is long and has been trimmed here. Open the source document for the complete record.