- How art thou fallen from heaven, O Lucifer, son of the morning! how art thou cut down to the ground, which didst weaken the nations!
- For thou hast said in thine heart, I will ascend into heaven, I will exalt my throne above the stars of God: I will sit also upon the mount of the congregation, in the sides of the north:
- I will ascend above the heights of the clouds; I will be like the most High.
- Yet thou shalt be brought down to hell, to the sides of the pit.
It’s official: on Thursday, November 13th, the Alabama Court of the Judiciary delivered Alabama from the lawless, theocratic rule of Chief Justice Roy Moore. The nine-judge panel threw Moore off his position on the state Supreme Court after he defied a federal court order to remove a two-ton Ten Commandments monument from the rotunda of the Alabama Supreme Court building.
As it stands, Moore has been thrown off the bench, but is free to run for an office on the Supreme Court again in the next election. Fortunately enough, the Southern Poverty Law Center is working to remedy that situation by filing a complaint with the State Bar Association. If they are successful (and the Court of the Judiciary’s ruling makes it much more likely that they will be), Moore will be disbarred and therefore prevented from ever darkening the judicial bench again.
All of this is great. Roy Moore is a dangerous demagogue without any respect for either justice or the positive law; he has used his bench not only for banging the Bible, but also to issue homophobic tirades posing as legal opinions, and to make the chilling pronouncement that:
The State carries the power of the sword, that is, the power to prohibit conduct with physical penalties, such as confinement and even execution. It must use that power to prevent the subversion of children toward this lifestyle, to not encourage a criminal lifestyle. (p. 36 of decision, emphasis added)
(As a side note, it’s also worth celebrating the fact that Moore’s screed has lost whatever legal grounding it ever had; insofar as he engaged in legal reasoning at all in the course of the opinion, it was based on the criminality of sodomy in Alabama and elsewhere. But sodomy can no longer be recognized as a crime under Alabama’s positive law, since the U.S. Supreme Court’s landmark ruling for personal liberty in Lawrence v. Texas.)
Of course, all this good news hardly means that either Roy Moore or his peculiar brand of politics are going to go away. What everyone’s noticed, and talked about, is not so much the facts of the case but the underlying politics: Roy Moore’s confrontational brand of Christian fundamentalism and the rallies, vigils, sit-ins, and other efforts of fundamentalist flaks to back up Moore and his monument. Unfortunately, the national newsmedia had no particular clue about what was going on (or if they had one, they certainly didn’t print it). But I’ve already talked at length about those misunderstandings in this space. There are plenty of misunderstandings to go around on Moore’s side of the fence too, which I’d like to mention here.
Most of the arguments that get thrown out to back up Moore are barely worth considering at all. The Mooreans (as seen, for example, in numerous off-topic responses to my letter to the editor concerning one of Moore’s decisions) claim that Moore’s freedom of religion is being infringed. Of course, it’s not: Moore has every right to worship however he sees fit. The only way that Roy Moore’s rights would be trodden upon here would be if he had a right to force religious displays on people in a government venue. But there is no such right. (Christians, of all people, ought to recognize this; it’s a sad commentary on modern fundamentalism that certain Christians can no longer distinguish between what is Caesar’s and what is God’s.)
Others have deflected the issue from Roy Moore’s individual rights to questions of
state’s rights against centralized federal power. Now,
as I said before, these aren’t really Roy Moore’s reasons for fighting the federal judiciary. The Yankee press got it more or less entirely wrong when they read Roy Moore as an updated George Wallace; the reasons that Roy Moore gives for his defiance are religious reasons: it’s not about state’s rights for him; it’s about Jesus. Nevertheless, while these are not really Roy Moore’s reasons, some of Roy Moore’s supporters have put this forward as an argument. In particular, Alan Keyes, who openly embraces the idea of theocratic states, and spends a great deal of time and linguistic mincing trying to show that the sum of the First and Fourteenth amendements really doesn’t amount to a ban on State religion—just a ban on federal religion. Here’s how he put his conclusion at the rally in Montgomery back in August:
We have the right to live in communities—and that means the people in Alabama can live in this state. And you know how come I know that this is so, that the First Amendment didn’t intend to destroy this right, that in fact such communities could exist, such states could exist? Because at the time the First Amendment was passed, at the time they put it on the books in the first place, there were a majority of states in the United States (at the time, the former colonies) where there were religious tests and oaths of office—where there were, in fact, established churches.
The thing about Keyes’ argument here is that it is not only dead wrong—but it is also completely irrelevant whether it is wrong or right. Let’s say that Keyes is right about the meaning of the federal constitution. So what? His remarks mighth ave been apropos if delivered in another state, but the Constitution of the State of Alabama has this to say on the topic:
Section 3. Religious freedom.
That no religion shall be established by law; that no preference shall be given by law to any religious sect, society, denomination, or mode of worship; that no one shall be compelled by law to attend any place of worship; nor to pay any tithes, taxes, or other rate for building or repairing any place of worship, or for maintaining any minister or ministry; that no religious test shall be required as a qualification to any office or public trust under this state; and that the civil rights, privileges, and capacities of any citizen shall not be in any manner affected by his religious principles.
So even if Keyes were right about the feds, he’d still be wrong about Moore. Roy Moore didn’t just defy the federal government; he acted in complete contempt of the state constitution that he swore to uphold. (It would have behooved Moore’s apologists to read more than the Preamble of the state constitution. It really isn’t a document that they can rely on for support.)
Of course, whatever the proper mincing of the positive law is, all of this leaves to one side the question of the natural law. Even if there were no protections from State-established religions in the positive law, I would still have every right to be free of Roy Moore’s theocratic displays. He has no right to use the sword of the State to compel religious beliefs or force others to pay for religious monuments. (Indeed, he has no right to use the sword of the State to do anything at all. But let’s set that aside for now.)
Roy Moore’s rights are not being squelched; he is being justly punished for violating the rights of others—by forcing them to endure, and pay for, his public comingling of God and Caesar.
It’s a happy day for Alabama; kudos to the Court of the Judiciary. Écrasez l’infâme.