In what critics are describing as an unprecedented challenge to judicial power, the House of Representatives last week overwhelmingly approved two legislative amendments aimed at short-circuiting a pair of high-profile court rulings regarding church-state issues.
In a 260-161 vote, the House approved an amendment to an appropriations bill July 23 that would prohibit the use of federal funds to enforce a recent 11th U.S. Circuit Court of Appeals decision calling for the removal of a Ten Commandments monument from Alabama’s judicial building. A day earlier, in an even more lopsided 307-119 vote, the House adopted a similar amendment regarding the enforcement of a federal court ruling in California forbidding the recitation in public schools of the phrase “under God” in the Pledge of Allegiance.
To the surprise of partisans on both sides of the debate, the votes went largely unnoticed by the national news media and even many advocacy groups that deal with church-state issues.
Critics of the amendments said they doubted the bans would gain the necessary Senate approval and suggested that House members were simply engaging in political grandstanding. Nevertheless, several prominent constitutional scholars, informed of the votes by the Forward, said the principle underlying the amendments — that Congress can selectively refuse to fund enforcement of federal court decisions — raises troubling constitutional issues.
“Courts have to be able to enforce their decisions. What they’re saying here is that if the states disregarded Brown v. Board of Education, Congress could have prohibited the enforcement of Brown, and I think that raises serious separation of powers questions,” said University of Southern California law professor Erwin Chemerinsky, referring to the landmark 1954 Supreme Court decision prohibiting school segregation. “On the other hand, I think that this is purely a symbolic show by the House, because marshals aren’t going to be called out to enforce these decisions.”
The House amendment involving the Ten Commandments seeks to block the enforcement of a decision widely hailed by Jewish groups as a victory for religious liberty. Most Jewish groups have not staked out positions in the pledge case, though the Anti-Defamation League issued a June 2002 statement blasting an earlier, somewhat broader ruling in the case.
The congressional actions, however, were defended by former U.S. attorney general Edwin Meese III. Though Meese said he could not recall a similar legislative maneuver, the former Reagan administration official told the Forward that the amendments appeared to represent “a legitimate use by the Congress of its appropriations power. In the absence of its ability to use that power, then there would be virtually no check on the court whatsoever.”
“I don’t think that it’s an everyday type of thing,” said Meese, chairman of the Center for Legal and Judicial Studies at the Heritage Foundation, a conservative think tank in Washington. “I think these were extreme decisions of the courts, where they made rulings that are not required by the First Amendment, and therefore I think this is certainly an understandable action by the legislature under their separate and equal powers under the Constitution.”
Republicans lined up solidly behind both amendments, which were introduced by Republican Rep. John Hostettler of Indiana. They voted 210-13 in favor of the Ten Commandments amendment and 216-10 in favor of the pledge amendment. Democrats were much more divided: They split roughly evenly on the pledge amendment with 91 in support and 108 opposed; the next day, 147 voted against the Ten Commandments amendment with 50 in support.
“There is a separation of powers question inherent in both amendments,” said Rep. Steve Israel, a Democrat from New York who voted for the pledge amendment but opposed the Ten Commandments measure. In an attempt to distinguish between the two amendments, Israel argued that the Ten Commandments issue involves a religious viewpoint, whereas the pledge “is not a religious expression, it’s a national mission statement.”
“I believe that the Constitution was written to give Congress the right to appropriate or not appropriate funds based on the consensus that emerges in the House of Representatives,” Israel said. “I have no problem with that; my problem is when we appropriate or refuse to appropriate in order to dismantle the wall between church and state.”
But Marc Stern, general counsel of the American Jewish Congress, argued that in the case of each amendment “the principle is the same.”
“The problem is Congress saying a court order should not be enforced,” Stern said. “And that would be objectionable whether we liked the decision or we didn’t like the decision.”
The advocacy group Americans United for Separation of Church and State issued a July 25 statement calling the Ten Commandments amendment “an insult to the Constitution.”
The amendments were also criticized by an official at the American Jewish Committee. “Congressional appropriation bills should not allow parties to avoid complying with court orders,” said AJCommittee’s assistant director of domestic policy and legal affairs, Kara Stein. “The appellate process is the more appropriate forum for their grievances.”
It is not clear whether the House’s amendments could gain approval in the Senate, which tends to be the more cautious body. The Fulton County Daily Report of Georgia reported Tuesday that Senator Richard Shelby indicated support for the House’s Ten Commandments amendment. A Shelby spokeswoman, however, told the Forward that the Alabama Republican had no current plans to introduce an equivalent amendment.
In the Alabama case, the plaintiffs are pushing for the current stay to be lifted, so the ruling can be enforced. But the man responsible for erecting the Ten Commandments monument, Alabama Supreme Court Chief Justice Roy Moore, has said that he will petition the U.S. Supreme Court. Enforcement of the pledge decision has been stayed, pending the outcome of a request for a Supreme Court review.
How Jewish Representatives Voted
|Gary Ackerman (D-N.Y.)||NO||NO|
|Shelley Berkley* (D-Nev.)||—||—|
|Howard Berman (D-Calif.)||NO||NO|
|Eric Cantor (R-Va.)||YES||YES|
|Ben Cardin (D-Md.)||YES||NO|
|Susan Davis (D-Calif.)||NO||NO|
|Peter Deutsch (D-Fla.)||YES||NO|
|Rahm Emanuel (D-Ill.)||NO||NO|
|Eliot Engel (D-N.Y.)||YES||NO|
|Bob Filner (D-Calif.)||NO||NO|
|Barney Frank (D-Mass.)||NO||NO|
|Martin Frost (D-Texas)||YES||NO|
|Jane Harman (D-Calif.)||NO||NO|
|Steve Israel (D-N.Y.)||YES||NO|
|Tom Lantos (D-Calif.)||NO||NO|
|Sander Levin (D-Mich.)||NO||NO|
|Nita Lowey (D-N.Y.)||YES||NO|
|Jerrold Nadler (D-N.Y.)||NO||NO|
|Steve Rothman (D-N.J.)||NO||NO|
|Bernard Sanders (Ind-Vt.)||NO||NO|
|Jan Schakowsky (D-Ill.)||NO||NO|
|Adam Schiff (D-Calif.)||YES||NO|
|Brad Sherman (D-Calif.)||NO||NO|
|Henry Waxman (D-Calif.)||NO||NO|
|Anthony Weiner (D-N.Y.)||YES||NO|
|Robert Wexler (D-Fla.)||NO||NO|
* Rep. Berkley did not vote on either amendment.
The House of Representatives voted overwhelmingly last week in favor of a pair of appropriations bill amendments prohibiting the use of federal funds to enforce two recent federal appellate court decisions regarding church-state issues. But opposition to both amendments was strong among Jewish House members. All but two of the 26 Jewish members voted against an amendment prohibiting funding to enforce a decision calling for the removal of a Ten Commandments monument from an Alabama judicial building; 16 voted against an amendment banning funding for enforcement of a ruling that would prohibit recitation of the Pledge of Allegiance in public schools because it includes the words “under God.”
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This story "House Takes Aim at Judiciary on Church-State Cases" was written by Daniel Treiman.