Once again, haze has beaten me to the punch. :)

The writing style of Judge Carnes of the Eleventh Circuit, who wrote the court’s opinion in Glassroth v. Moore, No. 02-16708 (11th Cir. July 1, 2003), suggests that Judge Carnes may have the making of another Alex Kozinski or Michael Musmanno.

Much like Kozinski and Musmanno, Carnes injects a certain degree of wry humour into his opinion. One particularly good example of this is how Judge Carnes disposed of Chief Justice Moore’s (a/k/a The Ten Commandments Judge) more preposterous assignments of error. Moore claimed that the District Court’s decision – holding that Moore’s 5280-pound slab of Biblical granite violated the Establishment Clause – should be reversed because “the district court judge should not have made any factfindings based upon his viewing of the monument and its surrounds.” Slip op. at 14. As Carnes noted, there was just one little problem with Moore’s complaint, namely that Moore was the one who asked the district court judge to look at the Chief Justice’s pet rock in the first place.

Chief Justice Moore claimed that he was somehow under the impression that the district court judge would only use the view to put the monument in “a physical context.” Obviously, when one looks at something to determine “physical context,” it’s simply unheard-of that they might actually seesomething in the process, or, as Judge Carnes put it, to say that the judge “cannot receive evidence by simply viewing the scene is to insult common sense,” Slip op. at 16, (quoting Foster v. State, 12 So. 822, 823 (Miss. 1893).) However, the Eleventh Circuit didn’t see any particular need to entertain this idiocy, since Chief Justice Moore’s lawyer had been so “eager” to have the district court judge view the scene “just like a juror would,” that he even offered to help the district judge park. Slip op. at 19. If anything, said Judge Carnes, this was invited error – a procedural violation by a judge that cannot be objected to because the person who claims to have been prejudiced by it actually invited the judge to commit it. However, it was much more than that. “Any conceivable error was not just invited error, but invited error with a parking space.” Slip op. at 19. Anyone writing an outline on Evidence, take note: this is history in the making, the birth of the “parking space error” doctrine.

The Carnes wit makes its appearance later on, upon arriving at the substantive constitutional issue: whether the chief administrative official of a state’s judiciary may, for openly religious purposes, erect a massive stone monument with the inscription “I AM THE LORD THY GOD” in a government building without violating the Establishment Clause of the First Amendment. This area of law is governed by Lemon v. Kurtzman, 403 U.S. 602 (1971), a Supreme Court decision that is, by now, only slightly less battered than a 1973 Ford Pinto. The Lemon test, as it is commonly called, has three elements:

(1) There must be a secular legislative purpose;
(2) There must be no “primary effect” of advancing or inhibiting religion;
(3) There must not be “excessive government entanglement” with religion,

See 403 U.S. 612-13. Justice Scalia has compared the Lemon test to a B movie horror monster:


Like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys of Center Moriches Union Free School District. Its most recent burial, only last Term, was, to be sure, not fully six feet under: Our decision in Lee v. Weisman, 505 U.S. 577, 586-587, 120 L. Ed. 2d 467, 112 S. Ct. 2649 (1992), conspicuously avoided using the supposed "test" but also declined the invitation to repudiate it. Over the years, however, no fewer than five of the currently sitting Justices have, in their own opinions, personally driven pencils through the creature's heart (the author of today's opinion repeatedly), and a sixth has joined an opinion doing so. {* * *}

The secret of the
e.g., Lynch v. Donnelly, 465 U.S. 668, 679, 79 L. Ed. 2d 604, 104 S. Ct. 1355 (1984) (noting instances in which Court has not applied Lemon test). When we wish to strike down a practice it forbids, we invoke it, see, e.g., Aguilar v. Felton, 473 U.S. 402, 87 L. Ed. 2d 290, 105 S. Ct. 3232 (1985) (striking down state remedial education program administered in part in parochial schools); when we wish to uphold a practice it forbids, we ignore it entirely, see Marsh v. Chambers, 463 U.S. 783, 77 L. Ed. 2d 1019, 103 S. Ct. 3330 (1983) (upholding state legislative chaplains). Sometimes, we take a middle course, calling its three prongs "no more than helpful signposts," Hunt v. McNair, 413 U.S. 734, 741, 37 L. Ed. 2d 923, 93 S. Ct. 2868 (1973). Such a docile and useful monster is worth keeping around, at least in a somnolent state; one never knows when one might need him.

Lamb’s Chapel v. Center Moriches Union Free School Dist., 508 U.S. 384, 398-399 (1993)(SCALIA, J., dissenting). However, as Justice White noted, writing for the majority,


“While we are somewhat diverted by JUSTICE SCALIA'S evening at the cinema, post, at 398-399, we return to the reality that there is a proper way to inter an established decision and Lemon, however frightening it might be to some, has not been overruled. This case, like Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327, 97 L. Ed. 2d 273, 107 S. Ct. 2862 (1987), presents no occasion to do so. JUSTICE SCALIA apparently was less haunted by the ghosts of the living when he joined the opinion of the Court in that case.

508 U.S., at 395 n.7. Against that background, Judge Carnes wryly notes that “we follow the tradition in this area by beginning with the almost obligatory observation that the Lemon test is often maligned.” Slip op. at 31. However, Judge Carnes also noted that “it is even more often applied,” and found the Chief Justice’s granite to violate the Establishment Clause.