W. James Antle III
15 March 2004
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.
It 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
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
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
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 a primary columnist for Intellectual Conservative.com. He works as an assistant editor of The American Conservative magazine and is also a senior editor of EnterStageRight.com.
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