Judge Roy Moore, chief justice of the Alabama Supreme Court, is in big trouble again.  Judge Moore’s first 15 minutes of fame happened when, as a lower-court judge, he refused to remove a plaque containing the Ten Commandments from the wall of his courtroom.  The plaque, it was said, amounted to an impermissible establishment of religion and could not be tolerated in a public building.  One court did order the judge to give up his Commandments, but he refused, arguing that, since our country’s system of justice was, ultimately, based on the Ten Commandments, it was perfectly appropriate to recognize them in a courtroom.  Judge Moore went on to capitalize on his notoriety by winning a seat on Alabama’s highest court.

The latest flap concerning Moore comes as a result of a concurring opinion he published in a recent 9-0 decision affirming a trial court’s denial to a lesbian of physical custody of her three children.  At the time that her divorce was granted, the woman, a Californian, shared joint legal custody with the father and had primary physical custody of the kids, but she later petitioned the California courts to modify the custody arrangement in order to give physical custody to the father, who subsequently moved to Alabama.  She desired this change, apparently, in order for her to pursue a same-sex relationship without the children getting in the way.  The California courts granted the father physical custody, and the children moved to Alabama.  Some years later, the mother changed her mind and, in a new quest for physical custody, argued, principally, that the father was too strict a disciplinarian.  Her new petition for custody was filed with the California courts, but the father succeeded in getting the matter transferred to the Alabama court.

Some evidence suggested that the children preferred to move back to California to be with their mother and her same-sex lover, and the father may have administered corporal punishment to at least one of the children and kicked the boom box of another.  Indeed, the trial court, concluding that the father should ease up in his discipline, ordered him to attend “parenting classes,” but the court also found that the circumstances had not changed since the father was first awarded custody, and thus there was no legal reason to change the arrangement.  An Alabama appellate court, however, reversed the trial court’s order on the grounds that the father’s strict discipline amounted to “abuse” of the children and that the mother’s homosexuality was no impediment to custody.

In a short opinion for the unanimous Supreme Court, one of Judge Moore’s colleagues pointed out that there is no clearer procedural rule of law than that the weighing of facts is a function of the trial court, not the appellate court.  Thus, if the Alabama trial court, taking everything into consideration and having had the opportunity to observe the demeanor of the witnesses, had thought that custody still belonged with the father, no appellate court could reverse that factual determination.  Judge Moore, in a concurring opinion, indicated his view that the law of Alabama deemed a homosexual couple presumptively unfit to be given custody of children.  He referred extensively to prior Alabama decisions that had indicated the inappropriateness of homosexual relationships by quoting from a plethora of sources including the Bible and Blackstone, and he noted their observations that homosexuality was “an abomination,” a “crime against nature,” and so forth.  Judge Moore did not present any of this as his own view, except possibly for one sentence where he wrote, without specific reference to Alabama law, that homosexual conduct “was an inherent evil, against which children must be protected.”  Still, the views the judge espoused were not really his but the prevailing holdings of prior judicial decisions in Alabama.  Thus, he noted, the Alabama appellate court was wrong.  The granting of physical custody to the father by the California courts had been appropriate, and so was the Alabama trial court’s refusal to set that decision aside.

Nevertheless, Judge Moore’s critics, who undoubtedly did not carefully examine the opinions in the case, went ballistic and called for his ouster.  Lorri L. Jean, the executive director of the National Gay and Lesbian Task Force, bleated that

It is appalling to see that blatant bigotry and unrepentant ignorance reign supreme in Alabama’s highest court.  Chief Justice Moore has decreed that his personal religious beliefs will now be the law of the land in Alabama.  This violates the constitutional mandate of separation of church and state, and it renders him unfit to serve as a judge.

Moore had done nothing like that, though it is true that the current constitutional status of sexual preference is somewhat murky.  The U.S. Supreme Court, our ultimate expositor of these matters, has ruled that state sodomy statutes that condemn and punish homosexual relationships do not violate the Constitution.  It has also ruled, however, that a state constitution cannot be amended in a manner that prohibits municipalities from forbidding discrimination based on sexual preference.

The prevailing view in the legal academy and, of course, in the media is that your choice of sexual preference or practice ought not count against you in any forum, but Judge Moore chose puckishly to remind us that politically correct doctrine is something different from law.  Indeed, Justice Moore’s judicial philosophy is that the Constitution and laws must be interpreted according to their understanding when they were adopted.  Thus, since the common law and the Constitution were promulgated in a nation committed to Judeo-Christian notions of morality, it is appropriate that some legal and judicial deference be afforded to traditional views, some incorrect decisions of the federal courts notwithstanding.

No matter what Judge Moore personally believes about homosexuals, and no matter how politically incorrect he is, he is certainly right about the law—about the need to draw distinctions between popular opinion and politics, on the one hand, and the dictates of precedent, on the other.  (In his concurring opinion, Judge Moore stated that “Judges should not make decisions based on the latest psychological or sociological study or statistical poll,” indicating his belief that prior law should govern).  He does not deserve the scorn and the contempt that his critics and their sympathizers in the national media love to lavish upon him.  He is a man of honor committed to the rule of law.  God bless him.