Insurrection revisited

[tom berg]

As an Alabama law professor already deluged with
discussion of Judge Moore's case, I have some questions
on a less controversial aspect of it.  In the public
discussion of this case, someone from time to time will
say "This case could go to the Supreme Court."  I'm not
sure that it can -- unless I am wrong on some doctrines
on which some of you federal jurisdiction mavens can
correct me.

The first lawsuit in this case was brought in federal
court by (or on behalf of) several citizens  who were
offended by Judge Moore's prayers and display.  These
people were at most potential jurors or litigants; none
actually had jury service or a case coming up before this
judge.  That case was dismissed for lack of standing, on
the ground that it was too speculative that the
plaintiffs would be exposed to the prayer and display.
Then the state sued in state court for a declaratory
judgment that the display was permissible.  The state
judge ruled against the display, and the case is now
before the Alabama Supreme Court.

Let's assume the standing ruling was correct.  (Was it?)
Then the proposition that the U.S. Supreme Court
will not be able to hear this case (at least in its
present posture) seems to follow, unless I'm wrong, from
two rules of federal jurisdiction:

1.  If a dispute fails to meet the tests for standing in
federal court, then the U.S. Supreme Court cannot hear
it even though it came up from a state court that has
more lenient standing rules.  (That, as I remember, was
also the situation in *Doremus*, the early 1950s
case in which the Court refused to review the New
Jersey Supreme Court's *1st Am* holding that Bible
readings in public school were constitutional.)

2.  Article III rules such as standing cannot be
avoided by bringing a lawsuit as a declaratory
judgment action.

Yesterday (2/25) an actual juror in Judge Moore's court
asked to be excused from hearing the prayer because he is
an atheist.  If he is a member of any of the
organizations suing, or wants to join the suit himself,
then I assume the standing problems will disappear.


--- Tom Berg, Cumberland Law School, Samford University



On Wed, 26 Feb 1997 10:19:59 -0600 richard duncan
<rduncan at UNLINFO.UNL.EDU> wrote:


> >
> > Should one interpret this as meaning that Rick would, when all is said and
> > done--that is, this is not one of his own highest priorities--nevertheless
> > applaud the Alabama Governor's "us[ing] the National Guard to prevent
> > enforcement of a judicial decree ordering a county judge to remove the 10
> > Commandments from his courtroom" because this exhibits "backbone [in
> > standing] up against the engine of secularization"?
> >
> > Sandy Levinson
> ____________________
>
> Sandy, you are only a few steps away from Lexington and Concord, the
> birthplace of liberty. When in Rome....
>
> No. I'm not for insurrection. But I do believe Jefferson had it right
> when, in a letter to William Smith, he said:
>
> "What country can preserve its liberties if their rulers are not
> warned from time to time that their people preserve the spirit of
> resistance?....The tree of liberty must be refreshed from time to time
> with the blood of patriots & tyrants. It is its natural manure."
>
> In a wimpy age, I am glad to see someone take a stand against attempts
> to drive religion out of the public square. Rather than call out the
> National Guard to fight a symbolic battle he can not win, I would
> prefer to see the Governor fight a legislative battle against strictly
> secular education that he might be able to win. But I admire his
> "spirit of resistance."
>
> --
>                    ----------
>              Rick Duncan (rduncan at unlinfo.unl.edu)
>
> "Tolerance applies only to persons, but never to truth. Intolerance
> applies only to truth, but never to persons. Tolerance applies to the
> erring; intolerance to the error." --Fulton J. Sheen

----------------------
tom berg
tcberg at samford.edu