The First Amendment to the Constitution plainly states: "Congress shall make no law respecting an establishment of religion ..." Since there can be no federal law on the subject, there appears to be no lawful basis for any element of the federal government – including the courts – to act in this area.
Moreover, the 10th Amendment to the Constitution plainly states that "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." This means that the power to make laws respecting an establishment of religion, having been explicitly withheld from the United States, is reserved to the states or to the people.
Taken together, therefore, the First and 10th Amendments reserve the power to address issues of religious establishment to the different states and their people.
Now, the 14th Amendment... lays an obligation upon state legislatures, officers and officials to... resist federal encroachments that take away the right of the people to decide how their state governments deal with matters of religion...
Chief Justice Roy Moore['s] refusal of the order... is his duty under the Constitution of the United States. Alabama Attorney General Bill Pryor, the eight associate justices of the Alabama Supreme Court, and indeed any other state officials in Alabama who submit to the judge's order are, by contrast, in violation of the federal Constitution, as well as their duty to the constitution and people of Alabama.
Martin Luther King, Jr., wrote in 1963 in his Letter from the Birmingham Jail, that “A just law is man-made code that squares with the moral law of God. Unjust law is a code that is out of harmony with the moral law.” That distinction is lost on those members of the Alabama legal establishment who have announced that, as Attorney General Bill Pryor put it, “My responsibility is to uphold the Constitution and the rule of law, and I will be doing my duty...”
Let’s not forget that this country was founded when some very brave state officials gathered together to defy the “rule of law” of King George III. The Founders said his “rule of law” was aimed at “absolute tyranny” over the states. So they acted in a fashion consistent with a long Western legal tradition that dates at least to St. Augustine, who said, “An unjust law is no law at all...”
But when, as in America at its founding, the state recognizes a higher law — the “laws of nature and of nature’s God” — liberty endures, as our own history powerfully demonstrates...
But, in the exceptional instance where a court usurps the will of the people and acts in a manner intended to destroy the foundation on which our freedom rests, it is the right, indeed the duty, of elected officials to call that act what it is, tyranny, and to refuse to obey...
