Relax, Historians: As Long as There’s a Roy Moore, You’ll Be in Business

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On February 8, Roy Moore issued an administrative order to Alabama’s probate judges to refuse to issue marriage licenses to gay couples, despite a federal district court’s holding that the Alabama ban on gay marriage was unconstitutional. Moore based his order on a couple of technicalities, the primary one being that the federal order was directed at the attorney general and not the probate judges.

A lot can change in three days. On Thursday, February 12, Judge Callie Virginia S. Granade of the Federal District Court ordered Alabama’s probate judges to issue the licenses. Undaunted, Roy Moore continues to insist that Alabama is not bound by the federal district court, and took to the airwaves to defend his position in a half hour interview with Chris Cuomo on CNN. Three days later, on Sunday, February 15, he appeared on Fox News Sunday with Chris Wallace.

He should have stayed home.

Moore bordered on incoherent. He mixed up arguments and muddled the law. He revealed just how unfocused and undisciplined a thinker he really is. And he savaged history, exposing in the process just how harmful ignorance of the American past can really be.

Moore’s CNN interview was certainly the most embarrassing of the two, but partially because Chris Cuomo was so combative. The entire interview boiled down to one fundamental question: “isn’t it your duty as a state judge to obey the law?” Of course, this is not the same question as “isn’t it your duty to do everything federal district judges tell you to do?” Cuomo made no indication that he understood the distinction, but scored immediate rhetorical points by conflating the two propositions with an historical comparison of gay marriage with desegregation. It was, of course, federal district courts that did the brunt of the “ordering” during the fifty-year battle to desegregate the southern United States.

If Roy Moore was smart, he would have immediately drawn out the differences between desegregation and gay marriage. It is not hard to do—the major distinction being that Judge Callie V. S. Granade is not operating under a ruling equivalent to Brown v. Board of Education (1954). She is instead taking a proactive stance. Even if we agree with the stance she is taking, it is simply wrong to say that she is compelled by judicial authority to come to that decision.

But Roy Moore didn’t do that. Instead, he blurted out that this is about marriage, and marriage “is not in the Constitution.” Then Moore went on to cite Murphy v. Ramsey (1885), in which the Supreme Court defined marriage as between one man and one woman. This he followed with an approving reference to Loving v. Virginia (1967), where the Supreme Court struck down a state ban on interracial marriage.

Wait a minute. First Moore argued that marriage isn’t in the Constitution, then he bowed to the Supreme Court’s dicta about marriage, and finally he lauds the federal courts invalidating of state’s discriminatory laws regarding the definition of marriage.

Have fun connecting those dots.

Let’s take a moment to examine the history that Moore invoked. Murphy v. Ramsey (1885) was a case that confirmed the power of the United States to criminalize polygamy in federal territory. The Court interpreted federal law and did not purport to define marriage per se. But that does not mean that Murphy v. Ramsey wasn’t laced with a number of nineteenth-century assumptions about what marriage was, and what it meant for people in that time. The same Supreme Court, after all, had already upheld a ban on interracial marriage in Pace v. Alabama (1883). About fifteen years prior, the Supreme Court laid out the philosophical basis for its understanding of marriage:

The Constitution of the family organization, which is founded in the divine ordinance as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood. The harmony, not to say identity, of interest and views which belong, or should belong, to the family institution is repugnant to the idea of a woman adopting a distinct and independent career from that of her husband.

That’s from Bradwell v. Illinois (1869). The case wasn’t about marriage, but rather about the Illinois Bar Association’s refusal to issue a license to Myra Bradwell to practice law. She met every single requirement except for one: she wasn’t a man. Bradwell sued and she lost. And she lost because the Supreme Court of the late nineteenth century believed that “divine ordinance” found women with careers “repugnant.” This is the assumption that undergirds Pace v. Alabama and Murphy v. Ramsey.

Roy Moore is utterly ignorant of this jurisprudence, or else he wouldn’t go around citing Murphy v. Ramsey.[1] Nor would he be trying to say that the Supreme Court of the 1880s, which approved of anti-miscegenation laws, was spot on while also lauding Loving v. Virginia’s invalidation of anti-miscegenation laws.

Chris Cuomo didn’t pick up on any of this, and we really can’t blame him. I don’t know many cable news personalities who are conversant with constitutional history. This is evidenced from Cuomo’s next line of questions, which pivoted to slavery. Slavery was in the Constitution once, Cuomo claimed, and then times changed. Hasn’t our understanding of marriage changed as well?

Let’s admit, that is a boneheaded question. Yes, of course slavery was in the Constitution. But it wasn’t removed because “times changed.” It was removed after the southern states declared a preemptive war on the country (you know, the Civil War?), lost badly, and then had the Thirteenth Amendment jammed down their throats.

But to listen to Roy Moore, one would think that slavery wasn’t in the Constitution at all:

Slavery was wrong, and in 1857 when the Supreme Court of the United States declared in Dred Scott that black people could be property, one justice dissented. He said that when a strict interpretation of the Constitution according to fixed rules was abandoned, the theoretical opinions of individuals are allowed to control its meaning, we no longer have a Constitution, we are under a government of individual men who for the time being have the power to declare what the Constitution is according to their views of what they think it ought to mean. Those words, by Benjamin Curtis, are exactly what’s going on in the United States Supreme Court and the federal courts of this state, of this nation, today.

This formed a running theme for Moore, who later said that he “stood with Benjamin Robbins Curtis” for refusing to declare that people could be slaves.

Except that Benjamin Robbins Curtis did nothing of the sort. His dissent in Dred Scott was about jurisdiction. Justice Curtis understood that the Constitution recognized slavery, and in fact as a Supreme Court justice he ordered the enforcement of the Fugitive Slave Act and denounced those who opposed it as traitors. In Dred Scott, Curtis dissented because he believed the Court went too far when it declared that the descendants of slaves could never be citizens.

All of this is lost on Moore, who—let’s be clear—hasn’t read Dred Scott. Later in the interview he defended his opposition to gay marriage by saying: “Again, there is nothing in the Constitution about marriage; how can judges go in and define a word … they are doing exactly what they did in 1857 in Dred Scott.”

One senses in these quotes Moore’s gross mental confusion. For the record, the Supreme Court had, well before 1857, defined slavery and enforced slave law on multiple occasions. Even Supreme Court justices opposed to slavery, like Benjamin Robbins Curtis, sucked it up and did their duty. They took an oath to support the Constitution, and the Constitution supported slavery.

Moore also brought up Plessy v. Ferguson (1896), the infamous case in which the Supreme Court held that state segregation laws did not violate the equal protection clause. This inaugurated the “separate but equal” principle that sustained discriminatory state laws. This was wrong, says Moore.

Of course it was wrong. But what Moore isn’t telling us here is that Plessy was wrong because it upheld a state discriminatory statute that violated rights secured by the federal Constitution. Is Moore arguing that the Supreme Court should have, in 1896, declared state segregation statutes unconstitutional on equal protection grounds? That, of course, is precisely what the Judge Callie V. S. Granade of the federal district court did in Alabama. In short, the opinion works completely to the opposite of the principle he is attempting to prove.

If anyone doubts this, we can just fast forward historically to when federal courts did start declaring segregation statutes unconstitutional.  The apogee of this was Brown v. Board of Education (1954) which demolished Plessy v. Ferguson and its legal justification for separating white schoolchildren from black and brown schoolchildren. The official southern response was to declare that education was not in the Constitution, and therefore federal judges should have nothing to say about it. Is that not exactly Moore’s argument now?

Moore was repeatedly asked what he would do when the Supreme Court ultimately extends equal protection to gay couples who want to marry. Moore’s response deserves to be quoted at length:

Then I will do what the court should have done under Dred Scott. If it’s an unlawful mandate you don’t have to recognize it, you can recuse from the case. You can dissent. You can dissent to the United States Supreme Court. Just like you can dissent to anything else.

It is impossible to read these thoughts right, because they do not cohere. First Moore says that he would do what the Court should have done (presumably ignore the Constitution and declare slavery invalid, but only God knows what that means in terms of what the “right thing” is today), then he says he would ignore the Supreme Court, then he will recuse himself and not participate, but somehow dissent even though he is not participating. This is not the mind of a jurist, or at least not a mentally competent jurist.

Chris Wallace of Fox News did a much better job of pinning Moore down. After cutting off a rambling Moore, Wallace asked him if point blank if he would obey the Supreme Court if it declared gay marriage a right. “You have been,” said Chris Wallace, “forgive me, a little fuzzy on this point.” Moore responded by invoking the same historical errors he had with Chris Cuomo. His litany of stock phrases, often not repeated in any recognizable order, were more than a little fuzzy.

You are forgiven, Chris Wallace. You asked tough, straightforward questions of Chief Justice Moore. You were a much more perceptive (and fair) interviewer than Chris Cuomo of CNN. Moore had an opportunity to make a clear and compelling case in a friendly venue. But he instead rambled about state sovereignty, mangled Dred Scott, and ended by insisting that Christianity is part of the organic law of the United States and beyond the purview of the Supreme Court.[2]

Okay then.

I argued in another post that Roy Moore was right, and that his role in the gay marriage struggle was an important one. Lest I be accused of flip-flopping, I will state for the record that I still believe that to be true. It is true not because I believe in what Roy Moore is doing, but because I find real value in a civil society where fundamental law can be a matter of protracted, peaceful debate. Moore’s legal position was and is still defensible, at least until the Supreme Court rules on the matter.[3]

But even so, this does not mean that Roy Moore is right on the merits. His interview repeatedly revealed the inner workings of his mind. He is a Christian fundamentalist, an intolerant and bigoted man who would be more comfortable living in a theocracy than a democracy.[4] He is also a badly flawed thinker, who muddles concepts and misreads the law.

It is his historical ignorance, however, that most offends. His misreading of Dred Scott and Plessy v. Ferguson indicates he has no decent respect for how rights’ struggles are waged and won. If this is the best that the Alabama jurist can do, then it is pretty easy to see why gay marriage is a fait accompli.

H. Robert Baker teaches history at Georgia State University. He is the author of The Rescue of Joshua Glover: A Fugitive Slave, the Constitution, and the Coming of the Civil War (2007) and Prigg v. Pennsylvania: Slavery, the Supreme Court, and the Ambivalent Constitution (2012). He is currently working on a book about Napa Valley in the 1970s and 80s. 

Notes

[1] I may be wrong here, and I admit it. Roy Moore might well believe that “divine ordinance” forbids women working outside the home. Roy? Care to speak up on that one?

[2] Fox News (like other cable news channels) posts scrolling facts during the interview, such as “1969: Moore graduated from West Point” and “2003: Moore Refused to Remove 10 Commandments from Courthouse.” My favorite had to be “Moore was a Professional Kickboxer.” That Moore spent a good part of his life being kicked in the head, apparently by people who make a living by kicking people in the head, explains a lot.

[3] I do not treat at this time the question of resistance to established Supreme Court opinions, or Roy Moore’s rather naïve understanding of federalism, state sovereignty, and resistance.

[4] There were points during his interview with Chris Cuomo where Roy Moore attempted to articulate his theory on why the Constitution is a Christian document. I have chosen not to write about this, but I will point out that it is premised on a rather brutal misreading of the Declaration of Independence. In his interview with Chris Wallace, he made these statements again, but without elaborating on them.

Comments

  1. Steve Wise says:

    Chris Cuomo, according to his Wikipedia page, is a licensed attorney and has a law degree from Fordham. So presumably he has some knowledge of the law, but without some research I think it unlikely he would be able to recall in an extemporaneous interview some of the interesting permutations in constitutional law that your post cites.

    In your 24th paragraph (my count), the last two sentences, starting “The official southern response . . . ,” is repeated, I presume, in error.

    • Chris Cuomo didn’t have much of interest to say about either law or history during the interview. Strikes me we should demand more historical literacy from our journalists. Bring back the humanities!

  2. Aaron J. Stockham says:

    Thanks for an interesting read, coupled with an important constitutional law seminar. Can I claim I knew you “way back when?”

  3. Thank you Aaron. And provided it doesn’t tarnish your reputation, claim away.

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