Right-Wingers Urging Judge To Take On Bush

VIEWPOINT

By Ami Eden

Published March 05, 2004, issue of March 05, 2004.

With the Democratic primaries all but over and Ralph Nader pledging to run for the White House, only one piece of the November electoral lineup remains unsettled: Will President Bush face an independent challenge from his right?

Speculation is rampant on the Web and among dissatisfied conservatives that Roy Moore — who grabbed national headlines when, as chief justice of Alabama, he had a 5,300-pound monument of the Ten Commandments installed in the rotunda of the state courthouse — is considering a run. Moore, as it turns out, is available, having been thrown off the bench by a judicial ethics panel after he defied federal court orders directing him to remove the monument.

But for now, Moore told the Forward, he is focused on waging a legal battle to get his job back in Alabama.

Too bad. For starters, a Moore candidacy likely would cancel out Nader’s potential impact and generate some entertaining campaign moments. More important, however, candidate Moore would help fuel and frame the burgeoning debate on the role of religion in the public square.

Often portrayed as a cartoonish mix between George Wallace and a fiery televangelist, Moore in fact offers a consistent, albeit extreme, critique of the prevailing conception of the law and the role of government officers in enforcing it.

But while many conservatives joined him in waving the banner of states’ rights when it came to defending his mammoth monument, few are expressing similar jurisdictional concerns while pushing for a Federal Marriage Amendment. In contrast, Moore is at least consistent, insisting that an amendment would represent a misguided intrusion into legal territory historically left to the states and warning against the unintend- ed consequences of attempting to define morality through constitutional measures.

“I don’t think you can make a constitutional amendment for every moral problem created by courts that don’t follow the law of their states,” Moore said, in an exclusive interview with the Forward. “If you do, you pretend to do what God has already done and make it subject to the courts. I think it’s a problem to establish morality by constitutional amendments made by men when the morality of our country is plainly illustrated — in Supreme Court precedent and in state-law precedent and in the common law — as coming from an acknowledgement of God.”

Moore worries that an amendment could eventually be mistaken as the source of morality and then be reinterpreted down the road by judges or legislators. For example, he said, the amendment currently supported by conservatives simply defines marriage as a union between a man and a woman, leaving the door open to future officials who could argue that the measure does not prohibit incestuous unions.

Still, beneath Moore’s seemingly restrained constitutional views rests a radical legal philosophy, reflected in his belief that the proper response to the decision of the Massachusetts Supreme Court to mandate gay marriage is for the governor to simply refuse to enforce the opinion. Moore has consistently offered a similar defense of his refusal to remove his monument, insisting that he swore an oath to the Constitution, not to federal judges, so it would be unlawful for him to bow to an order that violated his understanding of the law.

“A higher court can order a different result, but it can’t order a lower-court judge to violate his conscience,” Moore said. In other words, if a federal court judge — or, for that matter, any member of the Supreme Court — wants to break his back removing a two-and-a-half-ton monument, fine, but he can’t make Roy Moore do it.

As Moore sees it, his problem wasn’t that he took a stand, but that his fellow Alabama justices, the state’s Republican governor and its Republican attorney general all folded in the face of a federal court order, even though they agreed that Moore’s monument constituted a lawful acknowledgement of God.

“When we have judges who would blindly follow the orders of others, we have the same situation that Germany had in 1939 when they put the Jews to death,” Moore said. “They were following the orders of higher courts. Are we not becoming like they were by following blindly?”

Well, no. The theory is sound, but the context is off by at least six decades, 4,500 miles and 6 million victims.

Even as the culture wars rage on several fronts, and Red and Blue voters gear up for the presidential election, most Americans still feel a sense of shared community and belief in an orderly status quo that leads them to defer to a legal chain of command headed by the U.S. Supreme Court.

But this consent of the governed cannot be taken for granted. Moore’s vision is certainly gaining ground among religious conservatives, fed up with what they see as several decades’ worth of unlawful judicial decisions eroding American values. And now, Moore is receiving an unwitting boost from shortsighted liberals who think the best way to secure gay rights is to urge government officials to take the law into their own hands and perform same-sex marriages.

So, while a Moore run in 2004 seems unlikely, it’s not too late for 2008.



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