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Roy Moore and the Ongoing Scandal of an Elected Judiciary

What's to blame for the same-sex marriage chaos in Alabama? Our crazy judicial elections, for one thing.

By Nathan Pippenger

The last time we checked in with Alabama Chief Justice and former “Ten Commandments Judge” Roy Moore, he was hard at work redefining the First Amendment, insisting that freedom of religion applied only to Christians (and maybe Jews). Now, like a nasty head cold, he’s back again, sowing chaos in Alabama with a last-minute order Sunday night informing probate judges that they must not issue marriage licenses to same-sex couples—even though yesterday was supposed to be the first day of gay marriage in Alabama, after a federal judge struck down the state’s ban last month. Alabama appealed that ruling to the Supreme Court, but on the eve of the big day, the justices had still not indicated whether they would allow Alabama’s marriages to proceed before they rule on gay marriage later this year. (On Monday, they at last declined to stop Alabama’s marriages, signaling a pro-marriage equality decision later this term.) Despite Moore’s claim to be acting on behalf of “the orderly administration of justice within the State of Alabama,” his order actually led to disarray and confusion—especially since he doesn’t really have the authority to stop the federal court ruling. But who’s naïve enough to be surprised that he tried?

There were definite clues in that infamous First Amendment video from January 2014, including a section that’s especially relevant in light of this week’s events—even though it wasn’t the part that anybody was concerned with at the time.

It comes at the beginning of Moore’s remarks at a pro-life event, which were apparently preceded by the song “Onward Christian Soldiers.” Expressing his admiration for the song, Moore recalls: “We sang that at the United States Military Academy, over and over and over, in chapel services and elsewhere.” This memory sets the stage for Moore’s unhappy observations about how times have changed: “Our motto—everything about West Point—was about God. Today: they have two men getting married in the chapel.” He bites his lip and pauses for a full nine seconds before solemnly concluding: “So excuse my fervor.”

Despicable content aside, the speech is (if nothing else) rhetorically accomplished—you almost forget you’re watching a judicial official, not a candidate delivering a stump speech. And that’s part of the context needed to understand this story. Of course, the most important context is historical: As many people have aptly observed, Moore’s defiance is a reminder of Alabama’s past intransigence on civil rights. History will not be kind to him. (He’s not doing so well even in the present.) But if some judges worry first about their place in history, Moore’s mind is just as concerned with Alabama politics, since he’s part of our ridiculous system of elected judicial officials. His career should have been over more than a decade ago, when a state ethics panel unanimously removed him from office for defying a federal judge during the Ten Commandments controversy. But he’s turned that defeat into a political advantage—a scar that proves his social conservative bona fides. Running for office in Alabama not only resuscitated his career; it’s encouraged him to disrupt the state’s judicial system and score political points by trying to block the courthouse door for same-sex couples on what should be a joyous, historic day. Ending judicial elections wouldn’t remove every Roy Moore from our judicial system, but it would remove an obvious incentive for them to persist in this buffoonery. Why do we put up with this system?

Nathan Pippenger is a contributing editor at Democracy. Follow him on Twitter at @NathanPip.

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