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Roy Moore, reconsidered

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

Roy MooreIt 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. He can be reached at wjantle@enterstageright.com.

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