On Tuesday, Alabama Supreme Court Chief Justice Roy Moore advised Gov. Robert Bentley to ignore a recent federal court ruling striking down Alabama’s same-sex marriage ban. Moore described the decision as “judicial tyranny” issued “without constitutional authority,” advising Bentley to openly defy the court’s order. In 2013, Mark Joseph Stern explored Moore’s frequent struggles with the concept of federal supremacy. His article is printed below.
The 2012 election, by myriad metrics, served as a stinging rebuke to religious conservatism. Same-sex marriage advocates won ballot initiatives in four states; two states legalized marijuana, a longstanding bête noire of the Christian right; and the nation re-elected Barack Obama—a pro-choice, pro-same-sex-marriage Democrat—by a commanding margin. Commentators on the left cheered the decline of fundamentalism and anticipated its eventual demise; on the right, some Christian pundits declared near-surrender in the “culture wars.” Ross Douthat proclaimed the end of the “age of Reagan” and its attendant silent majority. On issues from drugs to homosexuality to contraception, Christian conservatism seemed, by the morning of Nov. 8, to have lost its grip on much of the United States.
In Alabama, the story was different.
Alabama re-elected Roy Moore as chief justice of the Alabama Supreme Court, nine years after he was forced out of the position. His investiture ceremony takes place today. Moore has an infamously colorful history of judicial misbehavior; in the 1990s, he initially defied a federal court order to halt Christian prayers in his courtroom and remove a Decalogue plaque, even counter-suing the ACLU for allegedly infringing on his own free-speech rights. Alabamans, largely supportive of Moore’s recalcitrance, elected him chief justice of the state Supreme Court in 2000. Moore used his judicial pulpit to favor the word of God over the word of human law, issuing such infamous opinions as D.H. v. H.H., in which he voted to grant child custody to an abusive father over a lesbian mother due to the “inherent evil” of homosexuality.
Moore took his dogma a step too far in 2001 when he commissioned a massive granite monument to the Ten Commandments to be placed in the Alabama State Judicial Building. (Moore actually copyrighted the monument’s design.) The ACLU and other civil liberties groups brought suit, arguing that the monument violated the Establishment Clause. In 2003, a federal judge agreed, ordering the Decalogue removed. Moore refused—and was swiftly removed from office by Alabama’s judicial ethics panel.
The ousted judge considered running as a candidate for the Constitution Party in the 2004 presidential election, a prospect gleefully encouraged by some progressives, but he ultimately decided against it. In 2006, Moore ran in the Republican gubernatorial primary and lost by a 2-to-1 margin. The former judge ran again and lost again in the 2010 gubernatorial primary, this time pulling in a scant 19 percent of the vote. Yet Moore’s fortunes turned last year, when he dominated the primary election for chief justice with twice as many votes as his closest competitor and won the general election with 52 percent of the vote.
Moore’s triumphant comeback is a potent corrective to the notion that religious conservatism and rejection of science has backfired politically. While Mitt Romney kept mostly mum on the issue of evolution, Moore spoke openly about his devotion to creationism, claiming that evolution has “distorted our way of thinking.” He intimated that evolution and the Constitution are irreconcilable. During his 2010 gubernatorial primary race, Moore ran an attack ad against a Republican opponent pillorying him for “supporting teaching evolution ... on the school board.” Predictably, Moore is also vehemently opposed to same-sex marriage and abortion. In other words, Moore ran the campaign religious conservatives hoped Mitt Romney would run: brashly religious, proudly conservative, and rooted in an unyielding devotion to fundamentalist principles over modern interpretations of equality, science, and the Constitution.
What’s even more disturbing about Moore’s win is not just that he steadfastly opposes recent issues (same-sex marriage and the contraceptive mandate), but that he is startlingly devoted to notions of governance that seemed to have exited the mainstream years ago. In particular, Moore’s persistent denial of evolution—and insistence that creationism be taught in schools exclusively—is no longer the orthodoxy of the Republican Party. Far-right Texas Gov. Rick Perry, during his brief presidential run, supported teaching evolution and creationism side by side. Even Tea Party star Michele Bachmann prefers incorporating both evolution and intelligent design into school curricula, claiming that though she believes in intelligent design, “there is reasonable doubt on both sides.” These views would be far too moderate for Roy Moore.
When Chief Justice Moore returns to the Alabama Supreme Court today, he’ll wield an enormous amount of power over the state, likely leaving a pro-Christian, anti-science mark on Alabaman jurisprudence for at least a generation.
Moore won’t be fighting these battles alone. Although federal courts have consistently forbidden the teaching of creationism and intelligent design in public schools, conservative state legislators have not given up their crusade to inject Christianity into curricula under the guise of encouraging “critical thinking.”* The Montana state Legislature is currently considering a bill that would mandate that public schools “teach intelligent design along with evolution”—in direct conflict with a federal court’s ruling in Kitzmiller v. Dover Area School District. Similarly, Republican Bill Zedler of Texas has introduced a bill to the Texas House of Representatives allowing instructors to teach intelligent design “or other alternate theories” (presumably, creationism) in public schools. These proposals take their inspiration from the Louisiana Science Education Act, a Louisiana law passed in 2008 which allows schools to teach “both sides” of science—that is to say, real science and Christian pseudo-science. Tennessee passed a nearly identical law last year, and several other states have attempted to pass their own versions.
Most of these attempts have failed, but as the election of Roy Moore indicates, there’s considerable public support for such measures in certain states. And despite ample legal precedent proscribing them, more of these bills are bound to materialize. In fact, just last year, the Alabama House of Representatives considered a bill designed to permit the teaching of creationism in schools. The bill died before receiving a floor vote, but it could easily be revived this year. If it does, it may well wind up on Roy Moore’s docket. Moore’s ruling might only raise his stock in Alabama. Fundamentalism might not be a winning ticket in every part of America, but in some red states, it remains the political gospel.
Correction, Jan. 16, 2013: This article originally stated that federal courts have forbidden the teaching of evolution. (Return.)