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Jeffrey Toobin: Federal courts have last word in Alabama

CNN legal analyst Jeffrey Toobin
CNN legal analyst Jeffrey Toobin

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(CNN) -- Workers on Wednesday moved the 5,300-pound Ten Commandments monument from the rotunda of the Alabama Judicial Building and placed it in an area out of public view.

The monument has been at the center of a legal battle between Alabama Chief Justice Roy Moore, who installed it in 2001, and the federal courts.

Moore was suspended from office last week after defying a court order to move the monument. His supporters had filed suit in Mobile, Alabama, this week to try to block the monument's removal.

CNN legal analyst Jeffrey Toobin joined CNN Anchor Soledad O'Brien on Wednesday to discuss the legal wrangling. Below is a partial transcript of their conversation.

TOOBIN: This is a fairly straightforward case of the government, in this case Alabama, endorsing one religion over others. The federal courts, who have supremacy over the state courts, have ordered the Ten Commandments out of the courthouse. That order is being enforced, and it's really pretty straightforward. I don't think there is any hope to this further lawsuit. I think that the court is really making sure that its order is enforced.

O'BRIEN: At the same time, a protester asked what I thought was a good question. "While there is still some kind of litigation pending, why not wait?"

TOOBIN: Because this litigation is really over. People continue to file additional requests to overturn a decision. But a court, a federal court, has issued a specific, direct order that the Ten Commandments be removed. The fact that someone is trying to have that overturned -- that's really generally no reason to delay. This is sort of a last-ditch effort, and they are -- they don't really get a delay simply by asking for an order to be overturned.

O'BRIEN: I have read that the Supreme Court in Washington, D.C., has three monuments to the Ten Commandments. I'm not sure as to the size of them, and I haven't seen them with my own eyes, but that's what I've been told. So what's the difference there? Why can the Supreme Court have them and this judiciary building not?

TOOBIN: Interesting. I have to say I've been surprised as this story has percolated along that there are more than a few references to the Ten Commandments in various government institutions around the country. You mentioned the Supreme Court. There are states, municipalities that have references to the Ten Commandments on their seals. There are Ten Commandments in other government buildings.

But I think it's really just a matter of scale and common sense. Small, unobtrusive historical references to the Ten Commandments are one thing; a 5,000-pound monument in the middle of the Supreme Court building is another. The courts have to make judgments like this all the time.

O'BRIEN: The protesters have now said that they've been told this monument will move potentially to a back hallway, only visible by employees and not by the public.

How legally does this change the argument? Couldn't someone still argue, "No, it needs to be out of the building? That's what we wanted the first time around in our lawsuit?"

TOOBIN: It could, Soledad. That is where matters of degree get involved, and you can be sure there will be more litigation about it.

It's a little like what you mentioned about the Supreme Court. There are -- there is no prohibition on the Ten Commandments being in a government building. They're in books all over government buildings, and they are occasionally displayed.

The question that judges have to consider is, "Is the display an endorsement of a religion?" That's really the question. And I think most constitutional scholars believe that the current situation with the 5,000-pound monument in the middle of the courthouse is clearly an endorsement, and that's why it's been ordered out. If it's in a backroom accessible only by employees, I could see a court saying that's not an endorsement.

But the one thing you can be sure of is there will probably be more litigation about it.

O'BRIEN: I've got a couple questions for you about Chief Justice Roy Moore. We talked to him a couple days ago. I asked, "Do you think you're above the law?" He said, "Well, I don't think I'm above the law. I think you should obey the law, except when the courts themselves are not going by the law." And then he quoted his First Amendment rights in his argument.

Give me a sense of what you think of his argument?

TOOBIN: That is, as I say, with all respect to the chief justice of Alabama, a completely incorrect legal argument. The federal courts in our society have, in our government, have the last word on what the law is. You are welcome to protest those -- the rulings by federal courts, complain about them, criticize them, but state court officials have to honor them.

And if the state -- if the federal courts say the monument has to go -- the monument has to go. And you don't have a First Amendment right to defy that ruling. You have a First Amendment right to complain about it. And I think that's the confusion.

O'BRIEN: Let me ask you a question about [Moore] because he's been suspended pending a hearing in the state judiciary court. What exactly is his status? What happens to him? When's his hearing? What does it involve?

TOOBIN: Well, I think he is temporarily out of office, and he could be restored.

But you know I think people who haven't been following this story need to know about Chief Justice Moore. The Ten Commandments is his issue. This isn't something that he just latched on to at the last minute.

Alabama has an elected judiciary. He was elected chief justice because he was an obscure local judge in Alabama who put up the Ten Commandments in his courthouse. As a result of that, there were lawsuits, very much similar to the one going on now. And as a result of that publicity, he was elected chief justice of Alabama.

So this is his issue. It's not like he just latched on to it at the last minute, and this is why he is pushing it and pushing it and pushing it. He's not gone forever as chief justice, as I understand it, but he will need to be restored.

O'BRIEN: It is unclear what moving company is helping out and doing it this time -- the measuring and the assessment of the monument. But the protesters have called for and have threatened a nationwide boycott of whatever moving company that is.

And they've also said that whoever owns that company or the people who are involved in this moving will be sorry that they cooperated. What do you make of these threats?

TOOBIN: Well, you know, this is where you get into the realm of people's First Amendment rights. They are welcome to boycott a moving company that they don't approve of. But they are not welcome to block the progress of the moving company. They are not -- they're not allowed to threaten, intimidate, certainly commit any act of violence. But if they want to denounce the moving company, that's what the First Amendment is all about.


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MAIN STORY
more video VIDEO
CNN's David Mattingly on Chief Justice Roy Moore's vow to keep the monument in place.
premium content
RELATED

• Final judgment and injunction Glassroth v. Moore  (FindLaw, PDF)external link
U.S. Constitution  Cornell Universityexternal link
YOUR E-MAIL ALERTS
Laws
Religion and Belief
Alabama

(CNN) -- Workers on Wednesday moved the 5,300-pound Ten Commandments monument from the rotunda of the Alabama Judicial Building and placed it in an area out of public view.

The monument has been at the center of a legal battle between Alabama Chief Justice Roy Moore, who installed it in 2001, and the federal courts.

Moore was suspended from office last week after defying a court order to move the monument. His supporters had filed suit in Mobile, Alabama, this week to try to block the monument's removal.

CNN legal analyst Jeffrey Toobin joined CNN Anchor Soledad O'Brien on Wednesday to discuss the legal wrangling. Below is a partial transcript of their conversation.

TOOBIN: This is a fairly straightforward case of the government, in this case Alabama, endorsing one religion over others. The federal courts, who have supremacy over the state courts, have ordered the Ten Commandments out of the courthouse. That order is being enforced, and it's really pretty straightforward. I don't think there is any hope to this further lawsuit. I think that the court is really making sure that its order is enforced.

O'BRIEN: At the same time, a protester asked what I thought was a good question. "While there is still some kind of litigation pending, why not wait?"

TOOBIN: Because this litigation is really over. People continue to file additional requests to overturn a decision. But a court, a federal court, has issued a specific, direct order that the Ten Commandments be removed. The fact that someone is trying to have that overturned -- that's really generally no reason to delay. This is sort of a last-ditch effort, and they are -- they don't really get a delay simply by asking for an order to be overturned.

O'BRIEN: I have read that the Supreme Court in Washington, D.C., has three monuments to the Ten Commandments. I'm not sure as to the size of them, and I haven't seen them with my own eyes, but that's what I've been told. So what's the difference there? Why can the Supreme Court have them and this judiciary building not?

TOOBIN: Interesting. I have to say I've been surprised as this story has percolated along that there are more than a few references to the Ten Commandments in various government institutions around the country. You mentioned the Supreme Court. There are states, municipalities that have references to the Ten Commandments on their seals. There are Ten Commandments in other government buildings.

But I think it's really just a matter of scale and common sense. Small, unobtrusive historical references to the Ten Commandments are one thing; a 5,000-pound monument in the middle of the Supreme Court building is another. The courts have to make judgments like this all the time.

O'BRIEN: The protesters have now said that they've been told this monument will move potentially to a back hallway, only visible by employees and not by the public.

How legally does this change the argument? Couldn't someone still argue, "No, it needs to be out of the building? That's what we wanted the first time around in our lawsuit?"

TOOBIN: It could, Soledad. That is where matters of degree get involved, and you can be sure there will be more litigation about it.

It's a little like what you mentioned about the Supreme Court. There are -- there is no prohibition on the Ten Commandments being in a government building. They're in books all over government buildings, and they are occasionally displayed.

The question that judges have to consider is, "Is the display an endorsement of a religion?" That's really the question. And I think most constitutional scholars believe that the current situation with the 5,000-pound monument in the middle of the courthouse is clearly an endorsement, and that's why it's been ordered out. If it's in a backroom accessible only by employees, I could see a court saying that's not an endorsement.

But the one thing you can be sure of is there will probably be more litigation about it.

O'BRIEN: I've got a couple questions for you about Chief Justice Roy Moore. We talked to him a couple days ago. I asked, "Do you think you're above the law?" He said, "Well, I don't think I'm above the law. I think you should obey the law, except when the courts themselves are not going by the law." And then he quoted his First Amendment rights in his argument.

Give me a sense of what you think of his argument?

TOOBIN: That is, as I say, with all respect to the chief justice of Alabama, a completely incorrect legal argument. The federal courts in our society have, in our government, have the last word on what the law is. You are welcome to protest those -- the rulings by federal courts, complain about them, criticize them, but state court officials have to honor them.

And if the state -- if the federal courts say the monument has to go -- the monument has to go. And you don't have a First Amendment right to defy that ruling. You have a First Amendment right to complain about it. And I think that's the confusion.

O'BRIEN: Let me ask you a question about [Moore] because he's been suspended pending a hearing in the state judiciary court. What exactly is his status? What happens to him? When's his hearing? What does it involve?

TOOBIN: Well, I think he is temporarily out of office, and he could be restored.

But you know I think people who haven't been following this story need to know about Chief Justice Moore. The Ten Commandments is his issue. This isn't something that he just latched on to at the last minute.

Alabama has an elected judiciary. He was elected chief justice because he was an obscure local judge in Alabama who put up the Ten Commandments in his courthouse. As a result of that, there were lawsuits, very much similar to the one going on now. And as a result of that publicity, he was elected chief justice of Alabama.

So this is his issue. It's not like he just latched on to it at the last minute, and this is why he is pushing it and pushing it and pushing it. He's not gone forever as chief justice, as I understand it, but he will need to be restored.

O'BRIEN: It is unclear what moving company is helping out and doing it this time -- the measuring and the assessment of the monument. But the protesters have called for and have threatened a nationwide boycott of whatever moving company that is.

And they've also said that whoever owns that company or the people who are involved in this moving will be sorry that they cooperated. What do you make of these threats?

TOOBIN: Well, you know, this is where you get into the realm of people's First Amendment rights. They are welcome to boycott a moving company that they don't approve of. But they are not welcome to block the progress of the moving company. They are not -- they're not allowed to threaten, intimidate, certainly commit any act of violence. But if they want to denounce the moving company, that's what the First Amendment is all about.


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Subscribe to Time for $1.99 cover
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CNN/Money: Ex-Tyco CEO found guilty
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A Time Warner Company. All Rights Reserved.
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