Ruling or Stump Speech?
Anti-Gay Opinion Sparks Debate on Judicial Elections
Law.com,
February 25, 2002
By Jim Oliphant, Legal Times
Roy Moore has never made a secret of his passionate Christian beliefs. He
hasn’t had to. They got him elected to Alabama’s highest court.
So when the chief justice of the Alabama Supreme Court made a speech to
3,000 supporters in a Tennessee arena in December, he did not hold back.
Moore told the crowd that it was time for Christians to "take back the
land." America, Moore charged, "was not founded on Buddha. It was
not founded on Mohammad. It was not founded on Confucius. It was not founded
on Islam. We don’t put our hand on the Quran. We put our hand on the Bible.
We were a nation established upon God."
Moore, who told the assemblage that day that it was "time for
Christians to take a stand," took a stand of his own two weeks ago, one
that has led critics to wonder out loud whether voting for judges is a good
idea.
On Feb. 15, the Alabama Supreme Court, in a 9-0 decision, stripped a
lesbian mother of custody of her three children. The decision was based on
undramatic legal principles, the standards for the review of evidence by
appellate courts.
Moore could have let the opinion pass quietly. Instead, he filed a 33-page
concurrence focused exclusively on the subject of homosexuality, calling it an
"inherent evil."
Citing everything from the book of Genesis to Alabama laws (still on the
books) that make homosexual sex a crime, Moore wrote that "if a person
openly engages in such a practice, that fact alone would render him or her an
unfit parent."
The opinion provoked national outrage, with civil rights leaders within and
outside the gay and lesbian community calling for Moore’s resignation.
In Alabama it is a different story, however. Moore remains a popular
figure.
Moore, 55, served eight years as a trial judge in Etowah County, Ala., and
rose to prominence over his insistence on displaying a plaque of the Ten
Commandments in his courtroom. He defied a state court order in doing so.
After campaigning in 2000 for chief justice on an unapologetically
conservative and Christian platform, he was elected with 55 percent of the
vote. He is frequently mentioned as a future candidate for governor. "I
see Judge Moore as I see the rest of the court. They’re all from Alabama,
and Alabama is one of the most conservative states in the country," says
John Giles, the director of the Christian Coalition of Alabama. Giles says
Moore is "fearless."
Moore’s ascendency in Alabama politics embodies both the promise and
plight of judicial elections. Supporters of direct elections to the state
bench say that selecting judges should not be exempt from the democratic
process and that judges should represent the people over whom they preside.
Detractors claim elections transform judges into politicians trying to appease
a constituency.
About 77 percent of state court trial judges nationwide face the voters at
some point in their careers, as do about half of all appellate judges. Only
seven states have no form of judicial elections. Sixteen states have, like
Alabama, partisan judicial elections.
Roy Schotland, a professor at the Georgetown University Law Center who
studies judicial elections, says that Moore "looked awful as a trial
judge. And what made him look awful is exactly, to what a significant number
of Alabama voters, made him look terrific."
Building a Base
While Moore’s attack on homosexuality may have appeared to some outside
Alabama as one more lingering vestige of the state’s foot-dragging approach
to civil rights, it was entirely consistent with the philosophy of a man
embraced by a majority of the voting public two years ago.
In the race for chief justice, he used the Ten Commandments as the
centerpiece of his campaign. It earned him more than $170,000 in donations
from the Christian community in and outside of the state. And the issue
propelled Moore past both a sitting Supreme Court justice in the Republican
primary and his Democratic challenger. Once elected, he had a 5,280-pound
granite monument displaying the commandments erected in the rotunda of the
Alabama Supreme Court building.
While some may view Moore’s anti-gay remarks as the family-values
manifesto of a deeply conservative state court judge, others see it as a
calculated message to his supporters.
"There is a fairly significant corps in the legal community that views
the opinion as the tossing of red meat to the constituents," says Steven
Glassroth, a Montgomery, Ala., criminal defense lawyer. "He’s saying,
‘I’m here. I’m doing your work. I’m still with you.’"
Moore declined comment. A spokesman for the Alabama Supreme Court, Scott
Barnett, says of the opinion, "All of the justices, including Moore, were
doing their jobs."
Glassroth is the name plaintiff in a federal court suit filed against Moore
and backed by Americans United for Separation of Church and State, claiming
the Ten Commandments monument violates the First Amendment.
Moore "probably has more guts than 99 percent of the people on the
bench in this country," says Stephen Melchior, a Wyoming lawyer defending
Moore in the suit and a long-time friend of the chief justice. "Should an
elected public official, because of that political office, abandon all their
views because they are not politically correct?"
Part of the money for Moore’s defense is coming from a fund established
by the Coral Ridge Ministries of Ft. Lauderdale, Fla. Its leader,
televangelist D. James Kennedy, is a strong supporter of Moore. The ministry
has collected more than $150,000 since Moore began his crusade concerning the
Ten Commandments more than seven years ago.
"What he stands for resonates with people," says John Aman, a
spokesman for Coral Ridge. "It’s obvious he enjoys great public support
in Alabama."
Melchior says that the money goes directly to him as Moore’s lawyer—not
to Moore. But that didn’t stop an ethics complaint—since dropped—brought
against Moore when he was a circuit court judge.
Alvin Holmes, an Alabama state representative from Montgomery, has filed
another ethics complaint with the state’s judicial inquiry commission over
Moore’s anti-gay remarks. "He did that strictly for political reasons
so that he can get elected governor," says Holmes, a Democrat. "He’s
going to use that as an issue to build his popularity."
Code of Silence
Moore makes speeches like the one in Chattanooga in December frequently.
Early last year, he appeared as a featured speaker at a "Reclaim
America" convention in California.
"It’s wonderful," says the Christian Coalition’s Giles.
"We like to see economic, moral and social conservatives elected to
office."
But his unrestrained enthusiasm for Christian ideals and the financial
support he draws from both the Christian and business communities highlights,
for some, the dangers of electing judges.
"What you’ve got here are political and financial interests at work
that, if not corrupting, give the appearance of corrupting," says Allan
Ashman, director of the Hunter Center for Judicial Selection with the American
Judicature Society, which favors an appointment system for judges.
"Judges don’t represent. They are not representatives of the people.
They’re supposed to be something else."
Moore’s actions come at a time when the remarks of judges and judicial
candidates are coming under increasing scrutiny. The U.S. Supreme Court is set
to hear oral arguments in a case involving the regulation of judicial speech
in March.
That case, Republican Party of Minnesota v. Kelly, involves a
Minnesota provision that prohibits judicial candidates from commenting or
appearing to commit themselves on cases or controversies likely to come before
their courts.
"The states need to regulate judicial campaign speech," says
Georgetown’s Schotland. "Roy Moore is a superb example of this."
Schotland says Moore, in using the Ten Commandments as a campaign vehicle,
was "signalling" to a certain bloc of voters about the ideological
positions he would take on the Alabama high court. "He says, ‘I’m
gonna put up the Ten Commandments,’ and that does the whole job,"
Schotland says.
On the other side of the U.S. Supreme Court fight is the Christian
Coalition, as well as free-speech groups from across the political spectrum,
including the American Civil Liberties Union. James Bopp, the lead lawyer in
the suit challenging the Minnesota regulation, says that "there are areas
where it is legitimate to know the views of judges. Judges make law just like
legislatures.
"Ideologues do seek judicial office," says Bopp, the general
counsel for the James Madison Center for Free Speech who has served as a
lawyer for the National Right to Life Committee and the Christian Coalition.
"Judge Moore had views. Is it better if no one knows he’s an
ideologue?"
Alfred Carlton, a North Carolina lawyer and the president-elect of the
American Bar Association, which supports an appointment system for judges,
suggests that the same political forces that vaulted Moore to the high court
could bring him down when he stands for re-election. "If people are all
bent out of shape on this opinion, they have recourse," Carlton says.
"It is the ultimate way you hold judges accountable."
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