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CNN BREAKING NEWS

Ten Commandments Monument Moved

Aired August 27, 2003 - 10:08   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

HEIDI COLLINS, CNN ANCHOR: Let's bring our legal analyst Jeffrey Toobin as we get the audio figured out. We'll keep an eye on the picture in Montgomery, Alabama.
Jeffrey, I want to ask you -- I was listening to you a little bit earlier today, and you were saying, I believe, that the main issue here is not really separation of church and state, it's much more about the display and it being an actual endorsement of a particular religion. Would you agree with that?

JEFFREY TOOBIN, CNN LEGAL ANALYST: I think that's right. Every federal judge that has heard this case has decided it the same way, and there's a very straightforward principle, not always easy to apply, but the principle is, the government cannot endorse religion over nonreligion, and it can't endorse one religion over another, and the very large display of the Ten Commandments in the rotunda of the state supreme court is pretty clearly to every judge that's looked at it an endorsement of Christianity over other religions and an endorsement of religion over nonreligion, and that's why the judges have all agreed that it couldn't be displayed there.

LEON HARRIS, CNN ANCHOR: Jeffrey, how are you doing? Leon here. Let me jump in here with a question, because you may have heard moments ago Brian Cabell reporting the hearing that was supposed to be held later this afternoon, basically this hearing was on a suit that was filed by an evangelical radio station group, I believe it was, from downstate in Alabama, they were going to file a suit to prevent this from happening, but their suit was apparently thrown out this morning. Can you explain why that may have happened before they actually got to the hearing?

TOOBIN: Well, I don't know the specifics, but this issue has been litigated extensively. The question is whether this display of the Ten Commandments is permissible. Very competent lawyer versus argued it could be displayed. The judges all through the system have ruled that it couldn't be displayed. The fact that someone wants to try to reopen this issue at the last minute doesn't mean you get to do that.

I mean, I'm not at all surprised that it was dismissed. As for the timing of when it was dismissed, I don't know the details there.

But just filing repeated allegations about issues that have already been litigated, you know, you just don't get to do that.

CABELL: From what I understand, what they were saying is that their actual constitutional rights were being abridged here, and my question is, how is it that someone on the outside like that would actually have standing in a case like this?

TOOBIN: Well, I think they don't. I think that's why the case...

CABELL: That's the point.

TOOBIN: ... the case was tossed.

CABELL: The argument that -- you know the Constitution has two clauses in it about religion. It says that Congress, there can't be any establishment of religion, and the government has to allow the free exercise of religion, and those sometimes appear to conflict, because people say, as did the plaintiffs in this lawsuit that was thrown out, look, it's part of my right to free exercise my religion to see the Ten Commandments in court, and the establishment clause is on the other side of that issue. So it's the job of federal courts to resolve the tension there, and every judge that has considered this issue has said, just the way you resolve it is by removing the Ten Commandments from that very public place.

HARRIS: We're looking right now, Jeffrey, at some pictures of some of these protesters who are assembled on the steps of the courthouse, and if you're wondering, and those who are watching, if you're wondering what's going on, as you see the protesters begin to lay face down, what we're being told here is that this is another sort of demonstration tactic. What they're doing here is laying down in silent repentance for what we saw happen here moments ago, and that event that happened moments ago was the actual removal of this 2 1/2 ton stone that bore the Ten Commandments, as you see it there. This is exactly what it looked like moments ago in the foyer of the courthouse, the judicial center in Montgomery, Alabama, as workers, after spending the better part of an hour or so, wouldn't you say, trying to hoist that on top of some sort of a pallet in order to move it, actually pulled that off and then pulled it out of the room.

COLLINS: And once again, we're being told it will go to some back hall somewhere in that very building.

But Jeffrey Toobin, if you're still with us, I want to ask you just another question if I could. One of the questions this morning, I think, is where is Chief Justice Roy Moore? Some people were wondering if he was going to actually be at the demonstration this morning or not, and we have not seen or heard from him at this point. I also want to ask you, what about his future now? Of course, there has been quite a bit of talk about his dismissal altogether.

TOOBIN: Well, that is going to be a tough issue for the board in Alabama that supervises judicial officers there, because this was a pretty clear act of defiance of the federal court that chief Justice Moore did. I think we need to draw an important distinction here. There is a legal issue about whether it is permissible to put the Ten Commandments up in this place or not, and I think reasonable minds can differ. In fact, it seems pretty clear that the other eight justices of the supreme court, several of them agreed with putting the Ten Commandments up. But the really important issue and the reason the Chief justice Moore has been suspended is that what the other eight justices recognize, and what the governor recognizes and the attorney general recognizes, is that when a federal court issues an order, that order has to be obeyed. That is a fundamental principle of American constitutional law, that the federal government is supreme in these conflicts. And it's because of the defiance of the federal court that Chief Justice Moore was removed, and that is the issue that may get him thrown out altogether as Chief Justice. It's not the Ten Commandments, per se, it's the defiance of the federal court order.

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