Roy Moore, reconsidered

By W. James Antle III
web posted March 15, 2004

It might be somewhat risky to confess this to conservative
website readers, but I am not the biggest fan of Roy Moore.
Moore, you may recall, was bounced from his elected position
as chief justice of the Alabama supreme court for refusing to take
down his display of the Ten Commandments in the rotunda of
the judiciary building despite a federal court order to do so. He
argued that his compliance would require him to acquiesce to an
unlawful ruling and violate his obligation to acknowledge God as
the source of our liberty.

While I thought there was more merit to the substance of his
argument than his establishment critics supposed, something
wasn't quite right about the way he was going about the issue. It
didn't seem to me at the time that it was appropriate for judges
to go around picking and choosing which court orders they
would follow, especially without extending this privilege to
ordinary citizens living under their jurisdiction. Moore's tactics
seemed suspiciously well designed for maximum publicity and
minimum efficacy. More effective Christian conservative consuls,
like Jay Sekulow of the American Center for Law and Justice,
accordingly distanced themselves from his legal strategy.

There was also just something about the whole Ten
Commandments tug-of-war that, however much I opposed the
secular humanism of Moore's critics, didn't strike me as the most
effective Christian witness. It was too much about power and not
enough about grace. It conveyed to unbelievers the message that
Christians wanted to rule more than anything else. Certainly,
there is nothing in the First Amendment or anywhere else in the
Constitution – as written by the Framers rather than as mangled
by the past half-century of liberal jurisprudence – that prohibits
the public display of the Ten Commandments. But where in the
Bible is it written that the secular state is an appropriate
instrument for the Great Commission?

When I wrote about these doubts a few months ago, many
readers responded in their e-mails that I just didn't comprehend
the extent to which the American constitutional order was being
subverted. Imperial jurists were concocting increasingly
outlandish doctrines, reshaping our laws and often wreaking
social havoc in the process. Was it my solution that
conservatives and Christians should just meekly accept whatever
crinkled mess these paper mache artists masquerading as jurists
want to make out of the Constitution and our culture to boot?

These thoughts occurred to me once again over the last few
months as the marriage debate has intensified and the courts
have taken center stage. A bare majority of the Massachusetts
Supreme Judicial Court took it upon itself to project its view that
traditional marriage is arbitrary, discriminatory, bigoted and little
more than an expression of exclusivist hatred. To be sure, these
judges believed they were acting out of compassionate motives
to open marriage to progressively more people, thereby
improving upon the original.

But as Don Browning and Elizabeth Marquhardt wrote in no less
an establishment organ than the New York Times, "Legalizing
same-sex marriage does not simply extend an old institution to a
new group of people. It changes the definition of marriage,
reducing it primarily to an affectionate sexual relationship
accompanied by a declaration of commitment. It then gives this
more narrow view of marriage all of the cultural, legal and public
support that marriage gained when its purpose was to encourage
and temper a more complex set of goals and motivations."

Yet not only did the Bay State SJC seek in its Goodridge
decision to reshape a fundamental social institution it did not
understand; it did so citing laws and constitutional provisions that
in many cases the voters were explicitly reassured did not
redefine marriage when they were originally written and enacted.
Eve Tushnet, writing in the National Catholic Register, described
this as a constitutionally dubious bait-and-switch: "The
Massachusetts court is saying to citizens, ‘You all go ahead and
vote for the laws. Then we'll tell you what you really voted for.
Don't expect it to look much like what you thought you agreed
to.'"

Although a majority of the Massachusetts legislature opposes
Goodridge, as evidenced by its recent vote for a constitutional
amendment to overturn it, no legislative leader looked at these
circumstances and seriously recommended impeachment as the
solution. Margaret Marshall will not face the fate of Roy Moore.

Perhaps you may argue that this is an unfair comparison.
Goodridge, no matter how ill-conceived and anti-constitutional
this writer believes it to be, was nevertheless arguably a
legitimate exercise of judicial review while Moore's was an act of
unlawful defiance. Removal from office is acceptable for
misconduct, unacceptable as a penalty for differing legal
interpretations.

Leaving aside whether this an accurate framing of the issue, what
then should we make of the spate of disobedience by liberal
elected officials who issued marriage licenses to same-sex
couples in blatant disregard of the law? San Francisco Mayor
Gavin Newsom ordered his staff to issue such licenses on the
grounds that to do otherwise would violate equal-protection
clause of California's state constitution, This was despite the fact
the opposite policy is written into state law, as affirmed by 61
percent of California voters in a referendum. If it is acceptable
for Newsom to defy higher public authorities in the belief that his
position is the constitutionally valid one, why shouldn't Moore be
allowed to do the same?

Copycats issuing same-sex marriage licenses ensued from New
York to New Mexico. All of these officials remain in office.
Aside from some short-lived bluster about throwing New Paltz,
New York's young Green mayor Jason West in the hoosegow,
none of them faced the serious prospect of removal from office
or any other significant punishment. The moral of the story: If a
federal judge tells you to take down a religious display, you must
comply or be removed from office; defy your state's voters and
legislators in the name of a progressive cause, and that's just fine.
The courts were markedly less eager to jump in on behalf of
same-sex marriage opponents than people who were offended
by the Ten Commandments display. The "living Constitution"
only grows in the leftward direction.

Although I am still by no means persuaded, it is enough to make
you wonder if Moore's approach wasn't right. Maybe accepting
constitutionally suspect edicts from the left as legitimate when
they do not consider themselves bound by laws more favorable
to traditionalists constitutes unilateral disarmament in the culture
war. Maybe I have misjudged the extent to which the old order
and constitutional process have withered.

Conservatives might have another opportunity to consider this
possibility in the upcoming presidential election. There are
building rumors – and in some quarters, ardent hopes – that
Moore might be talked into seeking the Constitution Party's
nomination for president. Howard Phillips is not running for
president again this year and had always hoped to be a
placeholder until a bigger-name defector from the Republican
Party's right – maybe a Pat Buchanan, Alan Keyes or former
Sen. Bob Smith – agreed to be the standard bearer. So far,
there have been no takers. The only declared candidate for the
Constitution Party nomination so far is Michael Petrouka, an
even less well known conservative who chairs the Maryland
state party and sits on the board of Phillips' Conservative
Caucus.

But Moore has spoken to a number of Constitution Party
gatherings throughout the country. Even some liberal pundits,
such as Slate's Timothy Noah, have been encouraging
speculation that he will run because they think he would be able
to help deny President Bush a second term. Moore might be
able to energize voters who feel the Republicans have been
noncommittal at best on the issues that matter most to them. In
addition to causes frequently associated with the Christian right,
he also has a huge opening in the form of the president's guest-
workers/quasi-amnesty proposal.
 
I'm still not sold on the Ten Commandments Judge, nor have I
signed on to the campaign to draft him to run as the Ten
Commandments president. But it's hard to be down on the man
who gave us Roy's rock when so many of his former colleagues
are offering a ruined republic.

W. James Antle III is an assistant editor of The American
Conservative and a senior editor for Enter Stage Right. The
views expressed above represent his alone.

Enter Stage Right -- http://www.enterstageright.com