Roy Moore and the Wrong Reason

See, I used to think that Roy Moore was just a little strong-minded in his religion. Now I think he ought to be disbarred for willful stupidity.

There are any number of reasonable things a reasonable person might believe, when it comes to that 5280-pound monument (5280 pounds . . . 5280 feet in a mile . . . concidence?) So far as I can tell, Justice Roy Moore does not subscribe to any of them.

God does not want the Ten Commandments on display in American courthouses. Though the Bible is perhaps not entirely consistent on this score, Matthew 6:5-6 contains a fairly strong admonition against public prayer, and Jesus frequently takes himself away from the company of the disciples when he prays. And then, of course, there's Luke 20:25 and that whole business about rendering unto Caesar. There are certainly plenty of Christians who believe that the separation of church and state is a good way of keeping the state from corrupting the church.

The Constitution (wrongly) forbids the display of the Ten Commandments in American courthouses; we should fix the Constitution. Establishment of religion is like flag-burning, racial slavery, intoxicating liquors, and baby-killing: if We the People think our Constitutionally-inscribed moral values are wrong, we can certainly fix matters. There's a perfectly good amendment process written into the Constitution. How good? We've used it twenty-seven times so far: that's an average of about once every eight years. We could certainly erase that sentence from the first amendment, or perhaps clarify its boundaries a bit.

The Constitution (wrongly) forbids the display of the Ten Commandments; our duty to God supersedes our duty to the Constitution. Now, as a "judicial officer[] . . . of the several states," Justice Moore has taken an oath (or affirmation) to uphold the Constitution, but the duty to God is something of a trump. So he's perfectly entitled to go outside the system and start engaging in civil disobedience. We've got a good, solid, American tradition of it: from abolitionists to anti-abortionists, religious Americans have opposed themselves to laws they believed to be morally flawed.

The Constitution allows the display, but Judge Myron Thompson (wrongly) thinks the Constitution forbids it; we'll shut up and appeal. Well, actually, Judge Myron Thompson and a three-judge panel of the Eleventh Circuit Court of Appeals. But we have a legal system that permits a second round of appeals; the Supreme Court still has a chance to step in. All that's at stake is the visibility of the monument pending the appeal.

But no, Justice Moore has vowed not to let that monument be moved, in defiance of a federal court order, and apparently also in defiance of an administrative order of the other eight Justices on the Supreme Court of Alabama. Whatever long-shot oddball jurisdictional arguments might have preserved Justice Moore's power from the federal injunction are probably dead in light of his fellow Justices' position.

Which is to say that Justice Moore is simultaneously claiming to act in accordance with the law of the United States and defying the United States legal system. But you can't have it both ways; Justice Moore, of all people, should recognize this much. If you think that divine law trumps human law and that human law made without the guidance of God's commandments is more likely to err, then it follows that sometimes the human law will be wrong.

Perhaps an ordinary citizen can get away with this sort of containment of multitudes. But judges in this country are charged with the application of human law, as articulated by human institutions. We've had a thousand years of practice in the art. I'm fine with people saying we ought to uproot those thousand years and put God directly in the decision-making process (though I hope they never prevail). That's their right, to have such an opinion, just as it's my right, to have my own. A lot of people who voted for Roy Moore hope and expect him to do just that. And yet he claims that he's applying the actual law of this country in his actions, a claim that is false on its face.

You don't get common law without precedent; you don't get Constitutional law without federal jurisdiction. Law without the legal system is not law: it is some theory of justice wrapped up in naked power politics.

At least George Wallace stood for something: he stood for states' rights and for segregation, and he could paint you a picture of how the world would work if his values held sway. But Roy Moore doesn't have that kind of courage; he's so wrapped up in winning the fight over his monument that he's entirely willing to sell God short when it's tactically useful.

Moore's Eleventh Circuit briefs, after all, tried to make the case that the monument wasn't that imposing, and didn't really endorse a religious point of view. Don't be saying that too loudly, though, Roy, or you'll make Baby Jesus cry. And now he's making his stand as Chief Justice Moore, not as a Christian with a conscience: it's funny how his personal values take a holiday every time he tries to provide a legal justification of his actions. He's acting like a lawyer, arguing simultaneously on behalf of inconsistent theories, in the hopes that one of them will stick to the wall. Anything to win the case, principle be damned.

This case isn't about the law, but it's not about God, either. It's about Roy Moore, a man who puts the "contempt" in "contempt of court."