MONTGOMERY, Alabama—Outside the Alabama Supreme Court on Wednesday, groups of protesters, who had traveled from across the country to show their support for Chief Justice Roy Moore, held signs declaring, “Judge Moore Is Right,” “It’s Not OK to Be Gay,” and “Sodomy Ruins Nations.” On the other side of a massive rainbow flag that served as a separating barrier, gay rights activists and their allies blasted pop music and waved signs proclaiming “#NoMoore” and “No Hate in Our State.”
This week, for the second time in 13 years, Alabama Chief Justice Roy Moore sat in defense in his own courtroom, charged with having violated the canons of judicial ethics in his doomed quest to keep same-sex marriage out of Alabama. And on Friday, for the second time in his Supreme Court career, he was removed from the bench for ethical violations.
At the center of this trial was a four-page order Moore wrote to state probate judges in January, informing them that—regardless of what a federal judge or even the U.S. Supreme Court might say—in Alabama, marriage law remained the same and they were not to grant licenses to same-sex couples. Moore penned his order more than seven months after the U.S. Supreme Court issued its decision in Obergefell v. Hodges, legalizing same-sex marriage across the U.S., and a little more than six months after a federal judge in the U.S. District Court for the Southern District of Alabama ordered all of the state’s 68 probate judges to issue marriage licenses to same-sex couples.
Throughout 2015 and 2016, while Moore was drafting orders and giving media interviews, the Southern Poverty Law Center was filing complaints against Alabama’s chief justice to the Judicial Inquiry Commission, which decides whether a state judge has committed an ethical violation. In May 2016, the Judicial Inquiry Commission charged Moore with six ethics violations relating to his January order. Following the charges, Moore was suspended from the court (with pay) until the Court of the Judiciary issued a verdict. On Friday, that verdict came in: Moore directed the state’s probate judges to disobey a federal order, interfered with the legal process, and demonstrated that he, the highest judge in the state, is unwilling to follow clear law.
To his followers, Moore is a national hero, one of the last jurists in the U.S. willing to stand up to what they see as federal tyranny and the moral downfall of the country. When Moore entered the courtroom, about 100 of his supporters gave him a standing ovation. “We love you, judge,” Kay Day, a longtime Moore supporter from south Alabama, yelled down to a smiling Moore.
The only witness in the hearing was Moore himself, who sat in a small, red swivel chair before a brown desk stacked with papers and exhibits. During his testimony, Moore was lively and jocular, as he was asked by his attorney to read through portions of his year’s worth of memos, ending with his unconstitutional order. Moore and his lead attorney Mat Staver, of the Liberty Counsel, have argued that the letter was nothing more than a “status report,” a chief justice responding to the questions and confusions of the state’s 68 probate judges. (By the time of Moore’s order, more than two-thirds of Alabama’s 68 probate judges were issuing marriage licenses to same-sex couples as required by law.)
Moore argued in his testimony that he “never told the probate judges what to do,” but that his letter reiterated the fact that the Alabama law barring same-sex marriage was still in effect. “As it is today,” Moore added.
“The [Judicial Inquiry Commission] can’t read an administrative order,” Moore argued to the chief judge of the Court of the Judiciary, Michael Joiner, who sat in Moore’s former chair. Moore and his lawyer appeared to be trying to say that the administrative order merely repeated what the law in Alabama was and did not “change the status quo.” In the balcony, Moore’s supporters repeated his and his lawyers’ admonishments of the Judicial Inquiry Commission. “This is political theater,” Staver argued in an interview before the trial. Staver said that not only were the charges false but that the court itself was corrupt and on a witch hunt to get rid of the controversial chief justice. Moore’s supporters compared this trial to that of Jesus by Pontius Pilate. In their retelling, Moore, of course, takes on the role of Jesus.
“I don’t defy federal court orders when they’re within the law,” Moore argued in court. Of course, this is not how federal court orders work: Federal court orders are the law.
In cross-examination, lead prosecuting attorney, John Carroll questioned why Moore felt he alone did not have to follow “the supreme law of the land.”
“What is the supreme law of the land?” Moore struck back at Carroll. The prosecutor refused to answer, and the audience in the balcony fell into a tense silence. “Debate him,” Day whispered.
This is the heart of the issue. According to Moore and Staver, the decisions of Alabama’s highest court are not subservient to those of a federal district judge. This goes against 200-plus years of constitutional interpretation that does put state courts below federal ones, of course.
“The state courts and the federal courts have co-equal authority,” Staver argued in a phone interview before the trial. “And one does not have to follow the other if they are making a decision on the U.S. Constitution.” This is not how the Supremacy Clause of the U.S. Constitution works, though.
At specific issue in this case was Alabama’s ban on same-sex marriage. In 2006, Alabama amended the state constitution, with the support of 81 percent of the voters, passing the Sanctity of Marriage Amendment, which legally defined marriage as between a man and a woman.
In January 2015, Judge Callie Granade, a federal judge in the Southern District of Alabama, ruled that Alabama’s laws against same-sex marriage were unconstitutional and for a few brief months, Alabama became the 37th state where same-sex marriage was legal.
But immediately, Moore began a game of “constitutional chicken” with the federal courts. A few days after Granade’s order, the chief justice wrote letters to Alabama Gov. Robert Bentley saying he would stand with the governor to oppose “judicial tyranny.” In May 2015, Granade stayed her injunction, noting that the U.S. Supreme Court would make a decision on marriage equality.
Finally, last summer, after the U.S. Supreme Court ruled that same-sex marriage was now legal across the country, Granade ordered Alabama’s probate judges to issue marriage licenses. “The game is over,” explained prosecutor Ashby Pate to the courtroom. But Moore continued to demand that the 68 probate judges of Alabama (who are elected and not required to be lawyers) defy a federal court order and a ruling from the U.S. Supreme Court. That is not allowed by Alabama’s judicial ethics standards, which the court settled on Friday.
During the proceedings, both sides were quick to mention Moore’s removal from the bench in 2003 for violating a federal court order to remove the massive monuments of the Ten Commandments that he had directed be installed at the courthouse. (In 2012, Moore was elected back into office.)
Moore says he has never denied what happened in 2003. “It was a decision that I made,” he testified. And it was a decision that brought Moore a lot of support across the state and the country. To the Christian right, Moore became a martyr willing to stand up to federal government overreach and the removal of religion from American jurisprudence. (When I sneezed in the bathroom, one of Moore’s supporters said, “God bless you!” Then quickly joked, “Oh, I said God in the courthouse. I hope no one complains to the [Judicial Inquiry Commission] about me.”)
For years, Moore has been clear and vocal in his opposition to gay rights and same-sex marriage. In one opinion in a 2002 custody case involving a gay mother, Moore wrote that homosexuality is “inherently immoral” and that the state had the power to punish gay parents through, “confinement and even execution.” Richard Cohen, president of the Southern Poverty Law Center, explained in a phone interview that Moore had placed the Ten Commandment tablets in his courtroom to indicate to all who entered “that religious law reigns supreme” in Alabama. “George Wallace used race to further his political agenda,” explained Cohen. “Moore is using religion to [further] his political agenda.”
Now that he’s been suspended, Moore is too old to run to reclaim his position on the court once again. (There is an age limit of 70 to seek re-election for the Alabama Supreme Court, and he will be over that limit when his term expires.) His lawyer says they will appeal the court’s ruling. Some of his supporters believe that Moore could run for state attorney general or governor next time around and that this verdict might serve as Moore’s stepping stone to a higher level.
While Alabama voters in the recent past have supported Moore in his re-election to the state Supreme Court, that was by a small margin. The turnout for this week’s trial was also a markedly small group, many from out of state. So while Moore will continue to be a vocal advocate for the Christian right, it seems that his role in politics may be over. (He did once record a Christmas album, so maybe there’s a career change ahead?) And maybe Alabama can finally move on from more than a decade’s worth of controversy brewed by one man’s hate.
