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Judge Roy Moore and the Ten Commandments Controversy
Why He Was Not A Fit Justice, Won't Be A Fit Governor, And Belongs in the Private Sphere

Tuesday, Nov. 18, 2003

Last Thursday, November 13, the Alabama Court of the Judiciary, a judicial ethics panel, threw former Alabama Chief Justice Roy Moore off the bench. As they did so, they reiterated all that is best about this country, invoking the rule of law and enforcing it.

Previously, the U.S. Court of Appeals for the Eleventh Circuit had ordered Moore to remove his 2.5-ton granite monument to the Ten Commandments from the courthouse. But he refused -- declaring he would never obey federal law.

Clearly, the Alabama ethics panel was correct when it ruled: "Anything short of removal would only serve to set up another confrontation that would ultimately bring us back to where we are today." As long as Judge Moore stayed on the bench, he was determined to keep violating the law; he'd made his intention very clear.

Worse, in the face of his defeat, Moore refused to acknowledge the grand tradition of the rule of law -- which he seems to see as no more than a thorn in his side. Instead, he declared he would soon make an announcement that would "alter the course of this country."

That very probably means one of two things. Either Moore is planning to announce his intent to seek the governorship of Alabama. Or he will be announcing that he has raised a boatload of money and intends to open a think tank or lobbying organization.

In this column, I will explain why I believe that Moore has proved himself deeply incapable of being Alabama's governor or, indeed, of holding any public office. Moore's next position should be in a private organization, not in government.

Why Moore Should Not Be Alabama's Governor -- Or Hold Any Public Office

Moore claims to be invoking the Christian heritage of this country, but that is not the case. Indeed, Moore's claim is deeply ironic, for Christians spearheaded the institution of the rule of law in America. They understood how important it was to prevent the government from picking and choosing which laws it would respect -- that way, they saw, lay tyranny. We have been in their debt ever since.

In the Eighteenth Century, they preached that lesson from their pulpits again and again. And their efforts played a large role in ensuring that early Americans embraced the principle that we now apply to everyone, including the President and wayward state court judges: The law applies to all equally.

Moore's position expressed the essence of tyranny: a single individual's drive to craft the law to suit his own personal will and ego. As Alabama's Presiding Justice put it, "The chief justice placed himself above the law." It's that simple and that fundamental. Yet, Moore's will to power appears to be insatiable.

And it's not only the lesson of the Framers -- and early American Christians -- that Moore is ignoring. He's also ignoring the lesson of the Civil Rights movement: The states must obey the U.S. Constitution's equal protection command.

By stoutly rejecting the force of federal constitutional law, Moore takes the South back to some of its least attractive history. It was a long time ago that the federal courts

-- and, finally, the Supreme Court -- ruled, in Brown v. Board of Education, that segregated education violated equal protection, and the southern states only twiddled their thumbs in response. But it was just recently that a federal court told Judge Moore in no uncertain terms to move his monument, and in response, he too, twiddled his thumbs.

Positions like Moore's made the work of leaders like Dr. Martin Luther King Jr. necessary. King marched with his thousands of supporters to urge equality -- but also to urge compliance with federal law, when the South had refused to follow it.

It is true that there is a tradition of defying federal constitutional law in the South, but it is a tradition that must be abandoned, not furthered. Moore is reliving a history of which no one should be proud.

For all these reasons, Moore is not only unfit to be Alabama's Chief Judge, he is also unfit to be its governor. Only one thing was taken from him by the Eleventh Circuit and by the ethics panel. It was not his belief, or his devotion, or his public stance. It was only the ability to act under the aegis of the Alabama government. Moore should not now return to Alabama government in another position. Those with a demonstrated record of defying federal law cannot be expected to enforce and uphold the law, as a governor must.

Moore Has A Right to Voice His Views In the Private Arena

However, if Moore's intent is to pursue the second, private option -- creating a lobbying group or think tank -- more power to him. Views like his, as much as I disagree with them, should be fully ventilated in the public square -- the locus of another of our best traditions: robust and rugged public debate.

Let us, as Americans, examine Moore's arguments, weigh his disputations, and come to a fuller understanding of the issues he discusses. The end result may not be far from where we are today -- for the more Moore's arguments for violating the Constitution are elucidated, the weaker they tend to seem -- but it may well that much better informed.

As a private individual -- one who is not co-opting the government's power to further his own belief in religious hegemony -- he can and should believe whatever he wants. He also is free to proclaim what he believes to far and wide.

In another irony, it is the very Constitution he seeks to disobey, that establishes his right, through the Free Exercise Clause and the Free Speech Clause of the First Amendment, to do so. Moore's quarrel, technically, is with the Establishment Clause. But he seems to fail to see that the Free Exercise Clause is its flip side: If the government could indeed establish a state religion, freedom of religion and freedom of speech would not last long.

As I have suggested in a previous column, Mr. Moore should feel perfectly free to mount his Ten Commandments monument on wheels and take it around the country.

And if he so chooses, once his tour is complete, he can buy a large building in Washington; install the granite monument in the foyer; hire a staff; and join the fight for religious hegemony being promoted by other groups right now.

All of this, the Constitution gives Moore the right to do. It is only that he cannot do it as a representative of our government. His only constitutional sin was the desire to use the government's power to force his views on everyone else. Everyone who entered Alabama's courthouse, seeking equal justice there, and found, instead of equality, a preference for a single religion above all others.

In Judge Moore's world, Alabamians -- and all Americans who might have had business in the Alabama courts - who did not share Moore's religious worldview would have had to walk through a courthouse lobby that sent a message that their tradition was, at best, second-class. Fortunately, we don't live in Judge Moore's world -- and Lady Justice in Alabama has now replaced her blindfold.

Marci Hamilton is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law. An archive of her columns, on church/state and other issues, appears on this website. Her email address is

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