August 22, 2003

SMILEY: Now, joining us now are two of the most vocal observers from opposing sides of this controversy. Attorney Ayesha Khan is the legal director of Americans United for Separation of Church and State. The group has joined the ACLU seeking removal of the monument. Also joining us is former presidential candidate, and the former U.S. Ambassador to the U.N.'s Economic and Social Council, Ambassador Alan Keyes. He says the court's effort to remove the monument is an attempt to stifle religion. Thank you both for joining us.

KAHN: Happy to be here.

KEYES: Hi.

SMILEY: Ayesha, let's start with you. We know that Justice Moore could eventually be fined for his refusal to remove the monument. How is his tough stance on this issue resonating beyond the state of Alabama?

KAHN: Well, Justice Moore has all along used this case for political grandstanding. His legal argument never had a chance of succeeding in the courts, and his position has been so extreme that even these other eight justices on the Alabama Supreme Court--mind you, seven of which are Republicans, and only one of which is a Democrat--are not willing to stand with him.

So, I don't think that his positions, given how extreme they are, are going to have much national relevance.

SMILEY: I want to get to Ambassador Keyes in a moment, but you made a statement that the other justices did not support him--and one of those justices on the Alabama Supreme Court, Gorman Houston, said, in fact, that he thought that Justice Moore had a case, but that his attorneys, Justice Moore's attorneys, did not handle it properly. That suggests that there was an option for him, perhaps, to win. There was a legal avenue for him to win. You disagree with that?

KAHN: Well, I think the attorneys for Justice Moore have taken such radical positions, that have certainly gone beyond what they needed to do to defend this monument. For example, they took the position that the Constitution would allow ANY kind of display, no matter what it consisted of. He could have depicted the crucifixion in the rotunda of the building. He could have handed out Bibles. He could have stood in the rotunda and preached all day long. He could have even put "what would Jesus do?" above his bench. And they said all of that would have been permissible.

And it's reflective of zealotry and the extremism that Justice Moore is really about, that he encouraged and presumably allowed his attorneys to take those kinds of positions.

SMILEY: Ambassador Keyes, you actually flew to Alabama this week, where you vehemently spoke out against the removal of the monument. Why does the chief justice have your support?

KEYES: Well, he has my support because what's involved here isn't, in fact, a religious issue at all. It's a question of the clear, plain text of the Constitution. They say some law has been broken, but there is no law. A matter of fact, the Constitution forbids Congress to pass a law that has anything whatsoever to do with establishment.

Contrary to what some people try to pretend, the Constitution doesn't forbid the establishment of religion. It simply forbids the federal government, lawfully, in any way, to address this issue. It left the matter to the states and to the people of the states.

And so, this federal judge is acting lawlessly. There is no basis in the Constitution whatsoever for what he is doing. And when they come up forward and say legalisms, and legal arguments, and legal precedents, they have all of them been baseless. And therefore, if one judge says something that isn't justified in the Constitution, and fifty-five others follow him for several years, that's not a long train of precedents. It's a long train of abuses, tending toward one thing: the establishment of a judicial despotism where the word of the judge is law, not the Constitution, not the laws. That's what Jefferson said would happen if you let judges issue rulings that had no basis in the Constitution or the law. And that's what has happened here.

And Judge Moore is showing the courage of an individual who says, "Look. They are going against the right of the people of this state to honor God through their state institutions, guaranteed to them by the Constitution in the First Amendment and the Tenth Amendment--which forbids the federal government interfering with these issues, and leaves it into the hands of the states.

SMILEY: Now, let me jump in, Ambassador. Ambassador. Ambassador. The U.S. Supreme Court, the Alabama Supreme Court have both ruled in this case. Now isn't this an example that is reminiscent of George Wallace defying the federal government, standing in the schoolhouse door . . .

KEYES: First of all, the Supreme Court of the United States has not ruled. It basically ruled on a procedural question, and refused to grant the stay. The substance hasn't, in any way, come before them.

But to tell you the truth, the whole notion that the courts get to decide their own power is despotism and tyranny. They do not. And in fact, if a court issues an unlawful, unconstitutional order, under their oaths, the executives of this country are obliged not to do what they say. If a court tried to usurp the power of the president as Commander in Chief, the president would say no--because the clear, plain language of the Constitution vests that power in him.

The clear, plain language of the Constitution forbids the federal government from interfering in this issue.

SMILEY: Ambassador, I'm going to bring Ayesha back into the conversation. Ayesha, I'm going to bring you back into the conversation with this issue: one of Chief Justice Moore's arguments is that there are similar displays in the Supreme Court building in Washington, D.C. What specifically, is wrong with . . . if that's true, what specifically would be wrong with the justice being allowed to keep that monument as a similar sign as what is occurring on the Supreme Court building?

KAHN: It's not true that the display in the U.S. Supreme Court is any way similar to the display in the Alabama building. The display in the Supreme Court is a depiction of several lawgivers, including Confucius, Hammurabi, Justinian, Moses, Mohammed. It includes a wide variety of individuals to whom we owe the influences that have created the American legal system. And it is a good example of what is permissible, because it is an objective, educational, historical representation of the influences on our legal system--which stands in stark contrast to this monument, which singles out one religious text, and is presented in its biblical form, which is on two tablets presents as if it's the pages of an open book.

And when Justice Moore unveiled this, he said he was doing it to proclaim the sovereignty of the Christian God. He has never said that this is an educational or historical exercise.

I want to speak to Mr. Keyes' continuous references to "this federal judge" or "one judge." It's now four federal judges who have unanimously said that this monument violates the Constitution. Three judges on the 11th Circuit, which is the court of appeals that sits over Alabama, affirmed Judge Thompson, and two of those, mind you, are the most conservative judges on the 11th circuit, Judge Carnes and Judge Edmondson--both of them Republican appointments.

And so, it just shows that legally, Justice Moore never had a prayer.

SMILY: Well, I've got to bring you . . . we're running out of time, and I want to give Alan Keyes one opportunity to respond to this. Do you think, sir, that Justice Moore still has a chance of winning? We've got about ten seconds left.

KEYES: What I think is that it doesn't matter if all the judges and courts in this country band together to establish a judicial oligarchy and despotism. They are imposing upon this country a judicial rule that has no basis in the Constitution.

The federal judge is forbidden by the clear, plain language of the Constitution from interfering with the states on this matter. I don't know where people get off telling us we have a law, when there can be no law on this subject. The Constitution forbids it.

SMILEY: Ambassador, we're out of time. Ambassador, we're out of time. We've been joined by attorney Ayesha Kahn, with Americans United for Separation of Church and State, and former presidential candidate Ambassador Alan Keyes. Thank you both for coming on today's program.

KAHN: Thank you for having me.