Moore, Gays and Alabama

Old Times There Are Not Forgotten. Look away,

Look Away.

Confederate Song, I wish I was in Dixie

Roy Moore is back in the news, accompanied by (a) all but one of his colleagues on the Alabama Supreme Court and (b) by Judge Marvin Wiggins, a Circuit Court Judge in rural Alabama. It all comes about because of their approach to the law.

Roy first made news in 1997 when, as a Circuit Court Judge in Alabama, he hung the 10 Commandments on a hand-carved wooden plaque in his courtroom and refused to remove the plaque when ordered to do so by a higher court. It was not removed until Roy was elected Chief Justice of the State of Alabama in 2001. Within 6 months of being elected to that post, he supervised the construction and installation of a 5,280-pound granite monument to the Ten Commandments in the central rotunda of the State Judicial Building. The Federal Circuit Court of Appeals for the 11th circuit upheld a lower federal court ruling ordering Roy to remove the monument. Roy refused. In 2003 the Alabama Court of the Judiciary removed him and the monument met the same fate. That ended Roy's judicial career until 2013 when he was once again elected Chief Justice. Although he did not reinstall the monument, he demonstrated that in at least one important way, nothing had changed from the time he first served until his subsequent election. What had not changed was his attitude towards the gay community.

In a concurring opinion that he wrote in his first term as Chief Justice he said that homosexuality is "abhorrent, immoral, detestable, a crime against nature and a violation of the laws of nature and of nature's God." He concluded his concurring opinion by saying a homosexual is "presumptively unfit to have custody of minor children." Now it is 2015 and Roy has once again afforded the country an opportunity to see how his views on gays have evolved over time. They haven't.

An Alabama lesbian known only by her initials, V.L., was married in Georgia to her lesbian partner. Three children were born by in vitro fertilization during the 16-year marriage of the parties, a marriage that came to an end when the parties divorced. The children had been legally adopted in Georgia by V.L. in 2007. Following the divorce, V.L. sought visitation rights in proceedings brought in Alabama. The Alabama Supreme Court concluded, with only one dissent, that Alabama did not have to give Georgia's actions the benefit of full faith and credit since Georgia judicial officials misunderstood Georgia law and had improperly permitted the adoption to occur 7 years earlier. Accordingly, said the Court, the adoption was invalid and V.L. had no visitation rights. Tom Parker, one of Roy's colleagues on the bench, feels as strongly about gays as does Roy. Tom took advantage of the fact that being a justice on the Court he could express himself in a concurring opinion even if what he had to say was irrelevant to the outcome. He did and it was. He said that in Alabama adoption is a privilege and not a right and that Alabama can second guess adoptions occurring in foreign states and refuse to recognize their validity if it suits him. (My words, not Tom's.) V.L. has said she will appeal to the U.S. Supreme Court. By the time that Court acts, if it does, the children V.L. helped raise, , a child 13 years of age and 11-year old twins, will be well into their teens if not beyond.

Alabama's unique approach to the law is not confined to its highest court. A Circuit court in a remote county devised a way to deal with those who cannot afford to pay their fines. On September 17, 2015, one day before Roy and his colleagues announced their decision, Judge Marvin Wiggins, a circuit judge in rural Alabama, addressed a courtroom filled with defendants who were present because of unpaid fines and court costs. He said those present had two choices. He said there was a blood drive outside the court house and: "If you do not have any money, and you do not want to go to jail, go out there and give blood and bring a receipt indicating that you did." He said those without money who were unwilling to give blood would face jail time. Those who gave blood would be given $100 credit against what they owed, and would receive no jail time even though the credit did not pay all they owed.

The Southern Poverty Law Center has filed a complaint against Judge Wiggins with the Judicial Inquiry Commission of Alabama. In the complaint it observes that if a defendant is unable to pay a fine because the defendant is indigent the it violates both the U.S. Constitution and Alabama law to jail the defendant for indigency. Of course the complaint says a great deal more than that. It is too soon to know what the Commission will do with the complaint. Whatever it does will probably be better than what Judge Wiggins did. That's a fairly low bar-just as improving on the approach Roy and his colleagues have taken on the rights of gays is a fairly low bar. Perhaps it's best if, as far as Alabama is concerned we all look away and, perhaps, hang our heads in shame. Many Alabamans are probably doing the same-understandably. Christopher Brauchli can be emailed at brauchli.56@post.harvard.edu. For political commentary see his web page at http://humanraceandothersports.com