by John Daniel Davidson · November 14, 2017
On Monday, a fifth woman came forward with allegations that Roy Moore sexually assaulted her when she was 16 years old and he was a prosecutor in Etowah County, Ala. The accusations to date are both plausible and disgusting. When Moore was in his early thirties, he allegedly sought out and sexually assaulted numerous teenage girls, including a 14-year-old.
Moore has denied it, sort of, although his weird interview with Sean Hannity on Friday left the strong impression that the charges are most likely true. Yet it’s hard to understand why voters in Alabama are only just now realizing that he is unfit for office.
They should have known years ago, when his contempt for the rule of law twice got him removed from the Alabama Supreme Court. It’s worth recounting those incidents because they reveal that Moore is no conservative and has little use for the American constitutional order that conservatives hold dear. That he was embraced by a significant number of social conservatives, and still enjoys significant support among some evangelicals, is yet another sign that the conservative movement has lost its way.
Roy Moore Has a History of Contempt for The Law
Moore’s trouble with the law began shortly after he was elected chief justice of the Alabama Supreme Court in 2000 and promptly had a 5,280-pound granite monument to the Ten Commandments installed in the state judicial building’s central rotunda. The American Civil Liberties Union and other groups sued, demanding the monument be removed on the grounds that it violated the Establishment Clause of the First Amendment and was therefore unconstitutional. A federal district judge and the Eleventh Circuit Court of Appeals both agreed, and ordered Moore to remove the monument. He refused, and in November 2003 the Alabama Court of the Judiciary unanimously voted to remove Moore from office, a decision the Supreme Court of Alabama upheld in an April 2004 ruling.
Moore returned to the bench in 2012, winning an election to become, for the second time, chief justice of the Alabama Supreme Court. At that time, gay marriage was a going concern. When a federal district judge in Mobile struck down Alabama’s marriage laws as unconstitutional in 2015, just months before the U.S. Supreme Court was set to hear Obergefell v. Hodges, Moore declared that the federal judge’s order was not binding in Alabama. He issued a decree prohibiting probate judges in Alabama from issuing same-sex marriage licenses. Relative chaos ensued. Alabama’s attorney general at the time, Luther Strange, told probate judges to consult a lawyer about their obligations.
The Supreme Court’s opinion in Obergefell meant nothing to Moore. Six months after Obergefell, he issued an administrative ruling to lower courts that “Alabama probate judges have a ministerial duty not to issue any marriage license” contrary to existing state law. In other words, he was ordering them to defy the Supreme Court. For this, Moore was suspended for the remainder of his term by the Alabama Court of the Judiciary.
Moore’s View of the Constitution Is Anti-American
As a result of these battles, Moore became something a martyr to some social conservatives, who mistakenly believed he was standing athwart history in the name of religious freedom, or moral clarity, or something. Too many conservatives conflated Moore’s crusade against the federal judiciary with the persecution that Christian cake bakers, florists, and pro-life groups now face at the hands of progressive state governments in California and elsewhere.
But they’re not the same thing. Moore’s fundamental claim that a state supreme court can ignore a ruling of the U.S. Supreme Court is anything but conservative. That question was settled by the Civil War and the constitutional amendments that followed in its wake, and no one who claims to be a conservative would argue otherwise.
But Moore’s moral grandstanding about the Ten Commandments monument and the Obergefell ruling weren’t just wrong as matters of law or history, they were fundamentally anti-American: Moore elevated himself, on more than one occasion, above the law. This is the sort of thing conservatives rightly accused former President Barack Obama of doing with his “pen and phone” approach to governing by executive fiat.
The excuse that Moore was on “our side” of the culture wars should never have been enough to forgive this behavior. That it was enough—and among some die-hard supporters, still might be—to elect Moore as the GOP candidate in Alabama’s special election next month is a sign of just how dysfunctional and deleterious our political tribalism has become.
Conservatives Should Never Embrace Charlatans Like This
Given the mounting accusations against Moore, it’s now likely that Alabama voters will send a Democrat to the Senate for the first time in a quarter-century. That’s not because Alabama Democrats are making inroads. To lift a famous quote deployed more than once during last year’s presidential race, Moore’s success was made possible because Alabama conservatives were so disillusioned with the GOP establishment that in their desperation, they turned to a man they didn’t fully understand.
But the stakes here are higher than the Republican Party’s majority margin in the Senate—a majority, it should be noted, that the GOP at this point doesn’t deserve. The greater damage Moore’s candidacy will do is to the credibility of conservatives in general.
Progressives tend not to believe that conservatives are sincere about their opposition to abortion, or gay marriage, or much of anything that conservatives profess. For most Democrats, conservative policy positions are all cynical ploys to secure an advantage at the expense of some minority group or other. When conservatives put forward regulations on abortion, they’re not really concerned about protecting the unborn but controlling women. When they oppose the expansion of the welfare state, they’re not really concerned about limiting government expenditures but punishing the poor. When they talk about protecting religious liberty, they’re really talking about discriminating against gay Americans.
The revelation of Moore’s alleged sexual misdeeds and crimes are repugnant enough on their own, and should cost him the election. But to the extent that he continues to receive significant support from Alabama conservatives, the accusations will have consequences beyond this one election. Much like the support Moore received earlier in his career, his supporters are sending the message that social conservatives are hypocrites: they don’t care about family values or morality or even basic decency, all they care about is power. Every time Republican voters embrace a non-conservative like Moore, that message gets harder to refute.
The Federalist · by John Daniel Davidson · November 14, 2017