Last edited: February 14, 2005

Ruling or Stump Speech?

Anti-Gay Opinion Sparks Debate on Judicial Elections, 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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