To anyone who’s been following Roy Moore for the past 15 years, there’s a single question that won’t go away: Why are we here? Given that Moore, as chief justice of the Alabama Supreme Court defied federal court orders and was removed from office — not once but twice! — it seems astonishing and outrageous that Republican voters chose him as a U.S. Senate candidate, leading to the current wave of sex-related allegations against him.
If you sense frustration in my tone, you’re not wrong. The point of a free press is to inform the public about the character and the beliefs of the people they will be voting for. And to me, at least, it has seemed clear since 2003 that Moore is unfit to hold public office.
In fact, there is something deep about the reality that Moore’s public career wasn’t ended by his earlier defiance of the rule of law yet now appears likely to be ended by his sexual conduct. The lesson is this: To bring down a politician, it’s not enough to show that he has violated your principles. You have to show that he’s violated his own.
To his supporters, Moore’s defiance of the federal courts on issues of church and state and on gay marriage were acts of principled civil disobedience, not dangerous threats to the very notion of legality. In contrast, no one really thinks it’s OK for a 32-year-old man to make sexual advances on a 14-year-old girl. That includes evangelical voters, notwithstanding lame attempts to invoke religion in Moore’s defense.
Consider the conduct that got Moore expelled from the Alabama chief justiceship on two occasions. The first time, he had erected a 5,200-pound granite statue of the Ten Commandments in the rotunda of the Alabama Supreme Court courthouse. This was a rather obvious violation of the establishment clause of the U.S. Constitution, and a federal district court so held. When Moore was ordered to take it down, he refused. To almost any lawyer and most non-lawyers, it seems obvious that defying a federal judicial order is wrongful conduct, especially for someone who’s elected position makes him the chief partisan of the rule of law in his state.
To Moore’s supporters, however, the whole point of the exercise was to show that God’s law — literally in the form of the Ten Commandments — trumped the Constitution made by man. According to their values, Moore was in the right, his actions not hypocritical but consistent.
Seen from that standpoint, Moore’s extended and unlawful resistance to the U.S. Supreme Court’s decision on gay marriage was similarly principled. Never mind that it is well-supported law that the U.S. Supreme Court, not the state supreme courts, has the last word on the meaning of the U.S. Constitution. Never mind that Alabama of all places shouldn’t be a venue for state resistance to federal authority when it comes to equal rights. As far as Moore’s supporters were concerned, he was standing up for God’s law, which he and maybe they take ahead of the law of the United States.
The fact that I and others like me consider it a violation of the oath of office to defy the Constitution was not, in the end, very important to the people who voted for Moore. That’s because they don’t share my values on this point, or at least they were prepared to forgive Moore because they care so much about the Ten Commandments and the immorality of gay marriage. Indeed, the fact that Moore was sanctioned for his wrongdoing by losing his position presumably made him seem like a civil disobedience martyr — a Martin Luther King Jr. for the evangelical right.
Moore’s real problems began only when it was alleged that he was a hypocrite, that his actions violated even the values he claims to espouse. That’s why it’s significant that he directly denied the allegation that he had gotten undressed with a 14-year-old, touched her sexually and guided her to do the same. This action is of course morally wrong, but what matters more is that it was morally wrong according to Moore’s own values and those of his supporters. Even if some people might be prepared to forgive Moore’s hypocrisy as a civil disobedience martyr, they would in this case be forgiving conduct that they acknowledge to be deeply bad.
Which is also why the effort by Alabama State Auditor Jim Zeigler to compare Moore to the biblical Joseph, the husband of Jesus’s mother, Mary, is particularly pathetic. Obviously, the comparison is religiously unconvincing, bordering on sacrilegious. Scripture is silent on Joseph’s age, and Mary’s age, and any disparity that may have existed between them. What is so obviously absurd it that anyone making such a justification knows full well that they are trying to justify immoral conduct.
The upshot is that there’s a good reason it has come to this. Wrongful conduct is in the eye of the beholder, and anyone who beholds Roy Moore now should see that he is unfit to serve.
Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His seven books include “The Three Lives of James Madison: Genius, Partisan, President” and “Cool War: The Future of Global Competition.”