Article XVI, section 279 of the Alabama Constitution, entitled Oath of Office, provides: “All members of the legislature, and all officers, executive and judicial, before they enter upon the execution of the duties of their respective offices, shall take the following oath or affirmation: I, …, solemnly swear (or affirm, as the case may be) that I will support the Constitution of the United States, and the Constitution of the State of Alabama, so long as I continue a citizen thereof; and that I will faithfully and honestly discharge the duties of the office upon which I am about to enter, to the best of my ability. So help me God.”
Roy Moore’s candidacy for a U.S. Senate seat is a serious threat to the Constitution and the rule of law. The shenanigans that got Moore thrown out of office as the chief justice of the Alabama Supreme Court – twice! – were more than just acts of civil disobedience on behalf of Evangelical religion. On each occasion Moore intentionally defied and denied the authority of the United States courts to have final say on the Constitution. That’s the core principle on which our legal system rests.
His first act of defiance occurred in the summer of 2003 when, as then Alabama’s elected chief justice, Moore refused to remove a 5,280-pound granite monument inscribed with the Ten Commandments. He had installed the monument in the rotunda of the Alabama Judicial Building, home of his court, just down the hill from the state capitol in Montgomery.
A federal district court judge held that this action by Justice Moore was a violation of the establishment clause of the Constitution. A federal appellate court affirmed the lower court’s judgment, and Moore declined to seek further review of that decision by the United States Supreme Court.
Instead, he announced his refusal to follow the federal appeals court’s ruling. As then Chief Justice Moore stated: “I have no intention of removing the monument of the Ten Commandments and the moral foundation of our law. To do so would, in effect, result in the disestablishment of our system of justice in this state.”
The supremacy clause specifically says that the United States Constitution is the “supreme law of the land” and that “the judges in every state shall be bound thereby, any thing in the Constitution or laws of any state to the contrary notwithstanding.” (U.S. Const., Article VI.)
Moore was clearly bound by the Constitution as understood by our federal courts. As a result of his defiance Moore was relieved of his post – simply stated, the chief justice of a state can’t be a lawbreaker.
But Moore is nothing if not persistent, and despite twice losing a race for governor, he clawed his way back, eventually getting reelected chief justice in 2013. Then Moore did it all over again.
After the Supreme Court’s landmark 2015 gay-marriage decision, Obergefell v. Hodges, he used his position as chief justice to direct the state’s probate court judges not to issue marriage licenses for same-sex couples. This was a replay of his blatant defiance of our Constitution.
Although the United States Supreme Court had spoken, Moore countermanded its commands, purportedly in the name of Alabama’s claim of right to interpret the Constitution differently.
Alabama’s legal establishment responded appropriately. A judicial inquiry commission charged Moore with violating federal judicial orders and, in 2016, Moore was suspended from his post.
He resigned this year to run for the Senate.
All elected United States Senators must take the following oath of office: “I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God.”
Moore’s proven conduct as lawyer and judge make clear that he believes that he, not the United States Constitution as understood by the United States Supreme Court, should have the last word on what is lawful.
Fit to serve? You decide.
Edward H. Schulman is a resident of Kailua Kona and a member of the Bar of both California and Hawaii.