February 2016 Church & State - February 2016

Roy Moore: An Alabama Judge Who Happens To Be Persistently Wrong

  Barry W. Lynn

Many people consider persistence to be a virtue. But is it always?

It depends on what you’re being persistent about. A crusading attorney who spends 10 years bringing a polluting corporation to justice will be called a hero. An obsessed ex-boyfriend who stalks a former lover may go to jail.

I’m all for persistently pursuing a noble goal, even when the odds are long. I’ve worked in the social-justice arena long enough to know that sometimes you have to dig in for the long haul. The first people to push for civil rights for all Americans didn’t work for a year and then give up because they didn’t succeed. They stayed with it, some of them passing the baton to a new generation of leaders, until the goal was secured.

But there are times when you do simply need to give up, times when your goals aren’t noble and your schemes are merely mad designs wrought by bigotry and extremism.

Which brings me to Roy Moore. The chief justice of the Alabama Supreme Court is at it again. More than a decade ago, Americans United and other groups sued Moore after he placed a two-and-a-half ton granite monument featuring his favorite version of the Ten Commandments in the rotunda of the state judicial building in Montgomery. 

Moore lost that case, defied the ruling and was removed from his position. For some reason, Alabama voters in 2012 saw fit to reelect Moore to his old job. He has spent considerable time since then trying to block marriage equality in Alabama.

The U.S. Supreme Court upheld marriage equality in the case of Obergefell v. Hodges in June of 2015. But even before that ruling, Alabama was under a federal court order to permit same-sex couples to get married.

In Alabama, probate judges, who are county-based officials, grant marriage licenses. As state chief justice, Moore oversees Alabama’s court system, and he got the bright idea that he could simply issue an edict ordering “his” probate judges to not sign marriage licenses for same-sex couples.

Unfortunately for Moore, there was that pesky federal court ruling. Americans United and its allies are representing several same-sex couples in the state. One couple had to delay their wedding more than once because they could not get a license.

Moore’s persistent obstructionism should have come crashing down after the U.S. Supreme Court decided Obergefell. Not so fast. Moore is now persisting with a rather strange notion and last month issued yet another order. This one asserts that because Alabama was not a direct party to the case (the plaintiffs were from Ohio), a state constitutional amendment and law banning same-sex couples from marrying remain in force.

I’ve taught law school classes over the years, and if any aspiring attorneys made this argument in my class they’d get a big, fat zero. It’s an absurd assertion.

Moore, of course, never directly announces that his view of the law is idiosyncratic or that he is substituting fundamentalist Christian dogma for the rule of law. He never cites relevant precedent for his view that Alabama officials have the right to ignore Supreme Court decisions – because there isn’t any to cite.

Extreme states-rights claims didn’t pass the laugh test during the Civil Rights era, and they haven’t aged well. Yet, persistent as ever, Moore just keeps repeating them. He even had the audacity to assert that the Obergefell ruling had spawned “confusion and uncertainty.” No, it did the opposite by applying a uniform standard nationally.

So what has happened in Alabama? As I write these words, a few counties did indeed stop issuing marriage licenses, but that only lasted a few days. 

But here’s the problem: Even before Moore’s latest stunt, probate judges in several counties decided to stop issuing wedding licenses to any couples, same-sex or different-sex. In response to Moore’s latest order, a few more counties stopped issuing marriage licenses (although two quickly reversed course and resumed issuing them). Such mean-spirited actions remind me of the Southern communities where 50 years ago officials shut down municipal swimming pools rather than allow African American children to use them.

Is this denial of all licenses legal? Americans United doesn’t think so, but the counties in question are mostly rural, and no one has challenged it yet. (If you know anyone who lives in these counties and can’t get a marriage license, send them to AU. We may be able to help.)

Moore’s persistent nonsense has real and painful human consequences for LGBT residents of the state, who are forced to jump through degrading hoops to secure basic rights.

Alabama doesn’t have a traditional impeachment process for judges, but it does have a judicial oversight body that has the power to remove judges who engage in misconduct. Moore knows about this body because it took his job away from him in 2003.

Perhaps it’s time for a new judicial inquiry into Moore’s behavior. I’d like to see them do that – and be very persistent about it.


Barry W. Lynn is executive director of Americans United for Separation of Church and State.

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