Roy Moore’s Ridiculous Defense of Marriage

Roy Moore of Alabama is a favorite whipping boy among political elites. Cue the tape of the Republican Senate nominee in a cowboy hat, holding his pistol, and let the pummeling commence. Just tossing out terms like “theocrat” and “buffoon” usually suffices in the world of talking heads and op-eds. On occasion, though, even the most blustery of blowhards feels compelled to provide a reason for his disdain.

For Meet the Press host Chuck Todd, the smoking gun of wacky fundamentalism was Moore’s saying, “Our rights don’t come from government, . . . they come from Almighty God.”  Unbelievable! It’s almost as though Moore takes the Declaration of Independence seriously: “We hold these truths to be self-evident that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” (Such truths are apparently “self-evident” no more.)

Dropping jaws on the left now are comments Moore made almost a year ago about Obergefell v. Hodges, the Supreme Court decision mandating same-sex “marriage.” The headlines blare that Moore thinks Obergefell is “even worse” than the infamous Dred Scott decision. (The orchestrated story was broken by a liberal outlet after a leftist super-PAC uploaded the audio to YouTube.) Dred Scott, in case you have forgotten, was a nineteenth-century black man. He had been taken from Missouri, where he was held as a slave, into Illinois and Wisconsin with his “owner.” Based on his stay of several years in those free states, Scott argued that he and his family could no longer legally be held in bondage back in Missouri.

Moore, the former Chief Justice of the Alabama Supreme Court, said this:

In 1857 the United States Supreme Court did rule that black people were property. And of course that contradicted the Constitution and it took a civil war to overturn it. But this ruling in Obergefell is even worse, in a sense, because it forces not only people to recognize marriage [as] other than the institution ordained of God and recognized by nearly every state in the union, it says that you now must do away with the definition of marriage and make it between two persons of the same gender.

Moore never endorsed or sought to minimize the Dred Scott decision. His “worse, in a sense” characterization seems related to the sweeping nature of Obergefell and the difference between recognition and redefinition.

Both decisions obliterated state-by-state approaches to contentious social issues. Slaves, said the Dred Scott majority, were mere “property” and thus could not bring lawsuits. By implication, a free state would have to recognize that “property” status whenever a slave was brought into its territory from the outside.

A parallel ruling would have forced traditional-marriage states to recognize the validity of homosexual “marriages” performed in other states. The Obergefell court went farther, though, and not only required that gay “marriages” from other states be recognized, but forcibly modified the laws of all the remaining traditionalist states. Those states now must affirmatively license homosexual nuptials within their own borders. It is as if the Court in 1857 had required free states to legalize the slave trade. Even Chief Justice Taney did not go that far. Justice Kennedy did. It is in this sense that the Obergefell decision is indeed more radical than Dred Scott.

Dred Scott decision was triumphantly hailed in the South as the “supreme law of the land,” just as Obergefell is hailed today by the coastal liberals. Melvin Urofsky notes that one Georgia paper called any opposition to the Court “morally treason against the Government.” Nevertheless, the decision was roundly ignored by politicians and judges in the North. As Moore correctly summarizes, the matter was eventually reversed on the battlefield.

Far fewer in twenty-first-century America have been willing to give up anything in the defense of marriage. The French—the French!—took to the streets by the hundreds of thousands, but here the public opposition to Obergefell consisted primarily of a county clerk in Kentucky and a Chief Justice in Alabama. Kim Davis was tossed in jail. Roy Moore was tossed out of his courtroom.

The mere suggestion that the “liberating” Obergefell decision could in any manner be grouped with the enslaving Dred Scott is anathema to many on the left. But it should be no scandal. Chief Justice John Roberts invoked the great mistakes of Dred Scott directly in his fiery dissent. Judge Moore was right to do likewise. When it comes to gay “marriage,” they both know, as Roberts declared in his closing words, that the Constitution has “nothing to do with it.”

I will not defend every sentence that Judge Moore has uttered, every action he has taken, or every person he has brought to his side. Moore can flutter between a winsome humility that is rare in politics and an overbearing bravado that is far too common. But I will note that the gaffe-prone judge is at his most eloquent when he quotes, at length and from the heart, the Scriptures and the Founders. He uses these authorities to support the core cry of his campaign: that morality matters to the nation and that God matters to morality. We need, as Moore often repeats, to “make America good again.” There could be far worse messages to take to the United States Senate.

John Murdock is a professor at the Handong International Law School.

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