Last August, thousands of people flocked to Montgomery Alabama to cheer on Roy Moore, a political leader of the religious right. He became a cult hero among some Christians after losing a suit filed against him for displaying the Ten Commandments in his chambers in 1995. The controversy generated political support and he was later elected chief justice of the Alabama Supreme Court. He then solidified his standing as “The Ten Commandments Judge” by installing a two-ton granite monument of the Ten Commandments in the rotunda of the Alabama Supreme Court. Knowing he would face another constitutional challenge he made sure the monument was privately funded and installed it secretly in the middle of the night. He was right. The constitutional challenge came and he lost. A federal district court ordered the monument removed. However, Judge Moore disagreed with the decision and refused to obey. A series of political rallies commenced on the steps of the Alabama state courthouse until the monument was removed from the rotunda and Judge Moore was removed from office.
This outcome seemed as obvious as it was inevitable. We have an establishment clause in our Constitution that says the government cannot establish an official religion. Under the establishment clause a court cannot favor one religion because the rule of law makes sure everyone gets a fair trial regardless of his or her belief system. Everyone who walks into that rotunda deserves an impartial judge and a couple tons of stone carved into a giant symbol specific to one religious tradition hardly suggests impartiality. Speaking of the rule of law, a judge doesn’t get to choose which orders he wants to follow when he’s a party in a case. A judge has the same right to appeal as any citizen and when he chooses to disobey a court order he should at least no longer be a judge.
Moore’s followers didn’t see it that way. According to leaders of that political persuasion like James Dobson the federal judiciary is out of control and unjustly removes religious symbols from government buildings. Because they think the courts are wrong, it’s okay for a judge to ignore them and do whatever he thinks is best. The Christian right is understandably frustrated. They believe their religion played a greater role in the formation of our democracy and have enjoyed a couple centuries of super majority status. Now, in the more religiously pluralistic America, forced respect of other’s beliefs is not an easy pill to swallow and they refuse to accept any reality other than the symbols of their religion prominently displayed in the halls of government. No other religious group in this country demands formal recognition the way the Christian right does. And they are so intent on having their religion be the only one represented in Government that disobeying laws and ignoring court decisions is encouraged as long as it preserves their status.
Now fast forward to February 2004 when the most contentious social issue is gay marriage. Last summer the Massachusetts Supreme Court ordered the state legislature to allow gay marriage. Leaving ambiguity whether Vermont style civil unions would be an acceptable alternative to marriage the court recently clarified that only the real deal would be constitutional. On the west coast, in San Francisco the newly elected mayor, Gavin Newsom, has ordered the clerk’s office to start issuing same-sex marriage licenses. Quickly he has become the hero of those supporting equal rights for gays and lesbians. Thousands from across the country have come to San Francisco to be legally married despite the 2000 passage of the California Family Code § 308.5 limiting marriage to heterosexual pairs. Mayor Newsom now faces challenges in court similar to Judge Moore’s and may suffer the same fate.
Similarities between the two men’s actions are astounding. First, both acted in secrecy. Moore installed his monument under the cover of night. The first gay marriage ceremony in San Francisco was performed in a closed-door ceremony on Friday, February 13. The mayor picked that day because the courts were closed for Lincoln’s birthday on Friday and for Presidents’ Day on Monday. By ordering the clerk’s office to stay open through the holiday weekend the mayor had four solid days of gay marriages before opposing groups could get into a courtroom to seek an injunction. Both men have also inspired copycats. In January, Winston-Salem, NC councilman Vernon Robinson set up a Ten Commandments monument like Moore’s and thumbed his nose at the threat of a lawsuit. (Robinson is running for Congress now in his district.) This week Sandoval County Clerk Victoria Dunlap of New Mexico said her county would begin issuing same sex marriage licenses. Mayor Daley of Chicago now says he would have no problem with gay marriage licenses and the Mayor of Salt Lake City has voiced similar support.
Both men compare their movements to the civil rights movement of the 1960s. In his now famous speech on the steps of the Alabama courthouse, James Dobson compared Moore’s decision not to remove the monument to Rosa Parks’ decision to remain in her seat. Mayor Newsom compares arguments against marriage equality to the separate but equal reasoning behind segregation. Neither position comes close to anything like the courage of the civil rights movement. Both men take up pet issues of the majority in their areas. Anything related to Christianity is not a hard sell in the south and neither are gay rights in San Francisco. Both men play to the will of their surroundings and benefit from quick, easy popularity. That doesn’t resemble Rosa Parks’ or Martin Luther King Jr.’s bravery in the face of injustice.
The most significant likeness between the two men is that they both broke the law to forward a political agenda. No matter how you feel about the Ten Commandments, a federal district court told Roy Moore to remove his monument and ignoring that is illegal. Likewise, a ban on gay marriage may be unfair but you still have to obey the law. 62% of California voters passed a law defining marriage in that state as between one man and one woman. We can’t have judges deciding which court decisions are worth obeying and we can’t have mayors deciding which laws are worth following. Newsom is right to reflect the overwhelming opinion of his electorate but not to the point of illegality. In some counties second amendment rights are very popular but a mayor can’t issue licenses to own bazookas just because the constituents favor it.
Gay people will have equal protection under the law in this country. It’s inevitable. No religious right group will be able to rationalize unfair treatment long enough to generate the broad based support necessary to pass a constitutional amendment. But, gay men and women will achieve equality through the strength of their arguments. While civil disobedience has it’s place, in the case of the San Francisco mayor the rights of those who elected him will be realized by appealing to the broader electorate’s sense of fairness and justice, not by ignoring a law that electorate already passed. Someday soon, laws banning gay marriage will lose their majority support and Mayor’s won’t need to break them to make their point.
The final similarity between the two men is the reasoning behind what they do. It isn’t for immediate victory. Moore knew he’d lose in court. He already had in 1995. Newsom knows his marriage licenses won’t be accepted as valid. The California Health and Human Services Agency has already started rejecting the licenses because they were altered from their original form to replace ‘bride’ and ‘groom’ with ‘applicant 1’ and ‘applicant 2’ thus making them unofficial. Both men did what they did for political reasons. Moore’s struggle energized religious conservatives the year before a presidential election and taps into anger following the notorious 9th circuit pledge of allegiance decision. There are rumors he may run for office in his state next year. Newsom hopes the images of thousands of happy couples will change the perception of gay marriage. After all, even the hardest hearted right-winger can’t remain unaffected by two 81-year-old women finally exchanging vowels after fifty plus years of loving fidelity. Both men’s actions may well be turning points in their respective issues, as well as their careers, and that is their primary motivation.
If it’s good for the goose it’s good for the gander. The exact same religious rights groups that had representatives speaking in Montgomery last summer are the ones who filed suit in California. Their battle cry for a judge was to ignore the courts when you disagree with their decisions. Now they run to the courts to stop a mayor who ignores a law with which he disagrees. The unprincipled hypocrisy behind these groups further removes them from the teachings of Jesus making them more and more a mockery of the faith they claim inspires their politics. They argue that removing symbols of Christianity will result in the collapse of the country’s moral foundation. They argue that allowing gay marriage will be the end of civil society. They miss an obvious point. The foundation of our democracy is the rule of law. The best way for a leader of any political persuasion to preserve the rule of law is to obey it.
