State supreme court’s top judge, Roy Moore, goes to trial Wednesday to learn whether he’ll keep his seat in showdown with the government over gay marriage

Alabama’s chief supreme court justice, Roy Moore, will go to trial on Wednesday to learn whether he will keep his seat as the land’s top judge. He hopes, almost certainly, to be thrown out.

Moore has picked a political fight that may not make sense to people elsewhere. But in Alabama, his intentions are clear: by carrying his fight against the federal government to the brink of judicial destruction, he is appealing to the rebellious nature of Alabamians and positioning himself to run for governor.

Alabama judge Roy Moore suspended over anti-gay marriage stance Read more

The stakes are high for him. He will turn 70 in February, which means he will not be allowed to run for a supreme court spot during the next election, in 2018. And as the sitting chief justice, he has no power to change the trajectory of gay marriage, the issue that brought him to this point. So the worst punishment the Alabama court of judiciary – a court for judges – could inflict on him would be to allow him to serve out his term, fading into obscurity as neither martyr nor decision-maker.

“That’s the irony,” said Wayne Flynt, a historian at Auburn University. “He needs them to remove him.”

The sparring began in February last year. That’s when a US district court judge ordered Alabama’s county-level judges to issue marriage licenses to anyone who qualified, regardless of gender or orientation.

That night, Moore sent an email out to all those lower judges, with a clear order of his own: “No probate judge shall issue or recognize a marriage license that is inconsistent with Article 1, Section 36.03, of the Alabama Constitution or ... 30-1-19, Ala. Code 1975.”

No probate judge shall.

The rest of the citation was legal filigree. The word “shall” made it an order, and artfully recalled the source of Moore’s fame and power: standing up to the federal government in 2003, over the display of the Ten Commandments in his courthouse. Thou shall, and shall not.

A special judicial court removed Moore from his position after that showdown, but the people of Alabama immediately elected him back to it.

Moore can do that – intuit the counterintuitive, surge with the insurgency – because those Alabama characteristics shaped him from birth. He grew up on Sand Mountain, an Appalachian foothill in north Alabama where his family looked like the other families on the mountain: poor, white, Baptist. He was smart, and a believer, and worked his way through West Point and a turn in Vietnam. He returned to Sand Mountain with a law degree and won an election to a local judicial district. He might have swung his gavel forever in near-anonymity except for one thing: his devotion to the Ten Commandments, which he installed in his courtroom.

After a suit by the American Civil Liberties Union in 1997, a judge in Montgomery ordered Moore to either take down the icons or add other diverse documents for context. The following conflict taught Moore a lesson he carried throughout his career: he lost his appeal over the commandments on a decision by a federal judge. But the ensuing pro-Moore rally brought about 25,000 supporters to the steps of the state capital in Montgomery.

Moore had glimpsed the power, in Alabama, of one man shaking his fist at the federal government.

It’s a trait that goes all the way back to the civil war, and the state’s humiliation in Reconstruction. “Ever since the secession, Alabama has been trying to find other ways to accomplish the same end,” said Flynt, the historian. “Lately, that has meant claiming a different set of rules apply to us.”



Alabama has wielded the 10th amendment to the US constitution on a variety of issues – same-sex marriage, for one – to claim sovereignty as a state.

“The problem is we’ve been inconsistent,” Flynt said. “Alabama would never support Massachusetts in a fight to legalize abortions in the third trimester. Or the state of Washington, if it wanted to ban all guns. We would say those states must bend to national opposition. We want it both ways.”

After his email last year, a judicial ethics commission suspended Moore, saying his order to lower judges was an abuse of power. In a 32-page complaint, the commission said Moore had “flagrantly disregarded and abused his authority” and “abandoned his role as a neutral and detached chief administrator of the judicial system”.

Moore struck back, saying the commission “has chosen to listen to people like Ambrosia Starling, a professed transvestite, and other gay, lesbian and bisexual individuals, as well as organizations which support their agenda”.

Now Moore aims to once again parlay a possible setback in Montgomery into defiant victory. A recent poll by one of the state’s most influential conservative groups, the Alabama Forestry Association, found that Moore led other possible contenders by a large margin among likely Republican voters.

Fighting gay marriage law is 'rude': polite Alabama drag queen is voice for equality Read more

“It’s an open secret here that Moore has his eye on the governorship, or at least attorney general,” said Richard Cohen, president of the Southern Poverty Law Center, one of Moore’s most consistent opponents. Losing his trial may help his political aspirations, Cohen said, but that shouldn’t be a consideration in court. “It’s high time the judiciary throws out the ayatollah of Alabama.”

It’s difficult to say how successful Moore might be in politics, regardless.

He may have spent his career attempting to re-create Alabama in the image of his beloved Sand Mountain, and doing so has tapped into Alabama’s idiosyncratic, sometimes backward, sometimes noble yearning for self determination. But over the decades, the state has changed. Figures whom Moore emulates, such as the late governor George C Wallace, now embarrass Alabamians. In both of Moore’s previous runs for governor, polls have shown that his constituency embraces his ideals, but finds his approach distasteful.

“Being a Baptist, I can tell him that most Baptists don’t agree with his methods,” Flynt said. “People here don’t want to be portrayed as ridge-running hayseeds anymore.”

