Judge Moore, Obergefell, and the Sexth Commandment

by Mary W Maxwell

A front-page New York Times headline on September 28, 2017 said “Alabama’s Revolution May Spark a GOP Civil War.”  Wouldn’t it be nice if they meant my revolution – I talked about Monsanto, Pizza-gate, Boston Marathon, and vaccination on the campaign trail. But no, they were referring to the Roy Moore, the “controversial judge.” He quotes the Bible and the Constitution at length, how controversial can you get? By the way, he also spouts Henry Lawson, and when we first shook hands he hit me with “The Drought in Queensland.”

Moore is not yet a senator; he still has to face the Democrat, Doug Jones, on December 12. I will gladly stump for Moore.

Towards the end of my campaign, the TV gave all its coverage to the three big candidates, even unto referring, unabashedly, to “the three-man race in Alabama.” That is, Luther, the judge, and Mo Brooks – who, by running, did not risk his seat in the House of Reps.

You may recall Mo Brooks pictured wearing his baseball glove after the shoot-out in which Steve Scalise was almost fatally injured in June, 2017.  As of yesterday, Scalise returned to his job in Congress. I am disgusted that no one in public life mused aloud about the possibility that “the baseball massacre” was politically planned rather than being the work of nutter, who died in situ.

Gayness, Abortion, etc.

I’m sure I’ll be asked how I, an LGBT supporter, could assist Moore who is virulently against same-sex marriage, or is indeed is anti-gay. Frankly, I don’t care what Moore’s prejudices are, and he won’t have a place to air them in Congress. Who knows better than Moore that “sex” is not a federal matter.

Feminists may be appalled to know that I believe the case of Roe v Wade was wrongly decided in 1973. Why? Because it is not for the US Supreme Court to declare unconstitutional a matter that doesn’t actually violate the US Constitution. SCOTUS used a sleight of hand, saying that the Fourth Amendment’s proscription of violations of privacy meant that the state of Texas could not enforce its criminalization of abortion.

IV. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

(I can see how it might work the other way. What if a state mandated abortion – as China did for women who broke the one-child rule? The woman could argue “You can’t seize me, as the Fourth Amendment’s protects me against ‘search and seizure’ by the authorities.”)

Note: I don’t rule out that shadowy figures had a hand in SCOTUS’s decision. Recall Dr Richard Day, a Rockefeller Insider, predicting in 1969 – four years before Rode v Wade – that abortion would become acceptable. How’d he know, unless he was sure how legislatures and courts would behave?

Constitution Uber Alles (IMHO)

But doesn’t the US Constitution make SCOTUS the highest court of appeal for any case in the 50 states? Yes, it does. It says in Article III, section 2:

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties … to all Cases affecting Ambassadors … to all Cases of admiralty and maritime Jurisdiction; –to Controversies to which the United States shall be a Party; — to Controversies between two or more States [etc]…. In all the other Cases … the supreme Court shall have appellate Jurisdiction, both as to Law and Fact…. [emphasis added]

When the case of Lawrence v Texas reached the US Supreme Court, the justices should have said — I opine — that “The conviction of the accused under the Texas law was correct.” It was a statute that made sodomy a crime. I think it was a bad law and needed changing – by the people. The Supreme Court must always uphold the principle of states’ rights, as it is a main job of the “great nine” to protect the Constitution itself.

During the Alabama campaign I kept preaching “You either have the Constitution or you don’t.” It is foolish to want the very great protection that such a legal document makes possible and yet say that we can ignore parts of it in the face of new cultural insights. Stick with the Constitution and you’ll be safe, Mate.

Full Faith and Credit

In regard to same-sex marriage, I think SCOTUS did a good job of protecting the Constitution in the 2013 case of US v Windsor. Its decision went against a Judge Moore or any such state person who abhors the idea of a married couple in their state being male-male or female-female.

In Windsor, SCOTUS referred to the “full faith and credit” clause of Article IV, section 1, of the US Constitution. It says:

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.

The Supreme Court ruled against Congress’s Defense of Marriage Act which explicitly said that the full faith and credit clause could be ignored when the subject was marriage.  Can you imagine! Thank you, Court.

Say two lesbians in Massachusetts get married and then move to Alabama. (Gay marriage has been legal in Massachusetts since 2004). Subsequently one of the women dies, and the other asks for inheritance rights as a spouse. Should the Alabama court award this, even though gay marriage is a no-no in that state? Yes. So said the Founding Fathers: each state must honor other states’ Acts, records, and judicial proceedings.

I don’t think any such case came before Judge Roy Moore in Alabama, but if it did he would be obliged to say Yes to the widow. However, he was not obliged, in my opinion, to issue marriage licenses to same-sex couples.

Obergefell

In 2015, the US Supreme Court ruled in Obergefell v Hodges, that all Americans ae entitled to be treated equally, when applying for a marriage license. Justice Anthony Kennedy hit upon the excellent solution of reducing the whole matter to one of equality (or, technically, non-discrimination) under the Fourteenth Amendment:

XIV (1868) Section 1. …  No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

So after the Obergefell decision, was the state of Alabama obliged to issue marriage licenses to gays? Technically, no. The way it works is that the US Supreme Court decided in favor only of the litigants in that particular case. There is no such thing as SCOTUS making an order for 50 state legislatures to repeal their law (even against, say, racial segregation). Separation of powers, ya know.

But doesn’t Obergefell famously help every gay couple in the US? Yes, but if the state is recalcitrant you’d have to wait for a litigant to brings a local case.

Really, Alabama is like a pouty child. It shouldn’t put citizens through the expense of litigating to get what is already a foregone conclusion: the marriage license will be issued. Normally, states see the handwriting on the wall and amend their legislation voluntarily.

Holding Out Till the Last Minute

It’s said, on the grapevine, that in at least one county, Tuscaloosa, the current policy is “Don’t issue marriage licenses to anyone – gay or straight.” This is because the states-rights maniacs – in whose ranks I proudly appear – are trying to make a point. The state legislature, not Washington, holds the power.

Say an Alabamian gay couple today takes Tuscaloosa county to court for failure to issue a license based on what we all know to be discrimination against gays (even though this is being humorously covered up by a general ban). What will a county or district court rule? It must rule in favor of the gay couple. The precedent set in Obergefell is “the controlling authority.”

It is said that Moore was so naughty that he got banned from his job. I don’t know exactly which state body sought to discipline him or who sued him. He resigned; he was not “fired.” Had Moore adjudicated a case contrary to law I’d be furious with him, of course. But it is my understanding that he didn’t rule on a case. Rather, as Chief Justice, he was bureaucratically the head of Probate Court which issues marriage licenses and he ordered a halt on licenses for same-sex applicants.

Can You Disobey a Court Order?

As for his earlier caper with the Ten Commandments monument, I’ve heard that he disobeyed a court order to remove the monument. So once again, if I’m to be a Moore supporter in the December election, I need to split hairs:  Posting a copy of the Ten Commandments in a courtroom is OK with me (very much so). Disobeying a court order is not OK with me. Rule of law means no one is above the law. Not Roy Moore, not religious principle either.

Granted, judges have often done terrible things by way of issuing court orders. They tell a person to do something that, in principle, is wrong. A highly principled person can choose to disobey, but that will land him in jail. (Consider Fredrick Toben in South Australia.) We need to look at this whole matter on another occasion — it’s bad for us to arm judges with powers and no accountability for their use.

As far as I can evaluate, Moore should have removed the monument and then tried to fight it out. I will appreciate criticism on that. Please don’t think my coverage here is definitive. I am only trying to explain my support for the “finalist” Republican in the current Alabama race. To repeat, his personal stance on gay-ness is simply of no importance. I am much more interested in the intricate workings of the Constitution.

I was pleased, not to say flattered, when Roy Moore said, in one of his speeches, “Mary Maxwell understands the last four words of the Tenth Amendment.” As indeed I do:

X. The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

It will be fun to hear Moore “doing his thing” for the states, and the people, in Congress!

Tuscaloosa the Beautiful

Tuscaloosa is one hour southwest of Birmingham. Its Black Warrior River is breathtaking.  This city, which is the fourth largest in the state, hosts the huge campus of the University of Alabama, shaded by magnificent trees.

When I lived in sublet digs in Tuscaloosa, June and July, 2017, I was happier than I have ever been in the 21^th century. Can’t explain it. Happy to the nth degree. Irresponsibly happy! Maybe something in the water?

More likely it was the warm welcome I received. Get this: after more than 30 years of trying to get a mere a nod of approval in Adelaide, a Birmingham radio station played “True Blue” to honor me. John Williamson’s True Blue, I kid you not. Bawled my eyes out.

I could live in Bama forever, but am involved in some business in the North (no doubt Gumshoe readers can guess what that be), and so I’m now renting an apartment, month-by-month, in New Hampshire, an hour from Boston.

The summer in Concord NH lasted till just two days ago (it was 88 degrees on September 27), so there hasn’t been any colorful foliage yet, which is pretty weird for New England.

Must make tracks back to Tuscaloosa, however, to check on something I’ve only just discovered – that it’s the national headquarters for the National Elementary School Press Association. This is an amazing program that gets children involved in becoming media persons by letting them write student newspapers, be photographers, do interviews, etc. Yay!

Finally, in regard to happiness, here’s what goes on regularly (so it is alleged!) in the Tuscaloosa school system:

–Mary Maxwell has peripatetic issues. Email her at mary.maxwell@alumni.adelaide.edu.au

(Photo credit; Central Alabama Republican Women)