Special to L. Neil Smith’s The Libertarian Enterprise

As someone who has been on and off paying attention to Alabama politics for the past thirty years or so, I have been very aware of Judge Roy Moore for a long time.

Moore first came into state-wide prominence in the mid-1990s as the circuit court judge in Etowah County, a position to which he was appointed by Governor Guy Hunt in 1992, after a background investigation and with the support of an earlier political opponent, before winning the seat by election in 1994. His statewide prominence came when he posted a plaque of the Ten Commandments in his courtroom, where various criminal defendants and their lawyers objected, eventually drawing in the American Civil Liberties Union. To make it clear, it seemed evident to me that he was devout in his faith, but it also seemed to me and to various acquaintances with whom I discussed the situation that he was grandstanding. In any event, he was ordered to cease displaying the plaque, an order he ignored but which was never enforced due to a higher court ruling. (He was also required to stop offering prayers in court, which which requirement he complied.).

This practice and ruling brought Moore broad and deep support among Alabama’s evangelical Christians, who elected him as chief justice of the Alabama supreme court in 2000. From this statewide office, he mounted a broader and more public effort aimed at displaying the Ten Commandments, installing a 5,300 pound granite monument with the Commandments inscribed on July 31, 2001. The ACLU, the Southern Poverty Law Center, and others brought suit against the monument on religious grounds, and the monument was ordered removed on on August 5, 2003. Moore refused to removed the monument; he was overruled by the associate justices of the Alabama Supreme Court and the monument removed to non-public storage on August 27. In consequence of these actions, Moore was removed from office by action of the Alabama Court of the Judiciary on November for alleged ethics violations stemming from the case.

Over the next several years, Moore supported himself by running a charity, the so-called Foundation for Moral Law. In 2012 he was re-elected as Chief Justice of the Alabama Supreme Court. From this position, on January 6, 2016, Moore issued orders suspending the US Supreme Court action of the previous June nationally recognizing gay marriage, pending decisions based on state statues prohibiting gay marriage. For this action he was again suspended from the Alabama Supreme Court, on September, 2016, and formally resigned his position when he announced his recent run for the US Senate seat vacated when Jeff Sessions became Attorney General.

Before proceeding, I want to make clear that I believe Moore was, in fact, legally correct in both of his protests against political correct policy. Regarding the Ten Commandments controversies, the Constitution clearly states (emphasis added): “CONGRESS shall make no law regarding an establishment of religion, or prohibiting the free exercise thereof.” The First Amendment does not prohibit a state official in a state setting from any personal religious action’nor, before the 1960’s, did it prohibit the inscription of Biblical texts on buildings and monuments all over the District of Columbia. The Constitution clearly and specifically prohibits the federal government from such actions was were taken to remove Moore’s plaques and monuments from a non-federal setting. Similarly, the Constitution does not give the federal government the right to regulate or define marriage’that is clearly not among the enumerated powers, and hence by the Tenth Amendment must be left to the states. or to the people. (That is not so say that I am personally opposed to gay unions, though I would prefer they be called unions rather than marriage; just that the issue is outside the scope of the federal government on Constitutional grounds. Further, many states had prohibited gay marriage by statewide ballot’including California’so a case can be made that the Supreme Court ruling violated the will of the people in those states as well as state sovereignty on the matter of defining marriage.) So I agree with Moore on principle in standing against political correctness, though I have as noted long been put off by his odious grandstanding on the subject. Obviously, the many in Alabama who strongly support him do not find his actions to be odious, or necessarily grandstanding. That does not make them “hicks,” as many in the press have said. That makes them good neighbors who might preach at you over social differences but won’t throw Molotov cocktails at you over political differences, or mock you in your pain.

So now we come to his Senate run, and in particular the allegations of relationships with teenagers and of sexual assault against three teenage girls, one of whom, at the age of 14, was underage at the time of the alleged incident. Note the timeline above. These incidents supposedly occurred in the late 1970’s, where he was first working as an “ambulance chaser” (the terms seems to fit) and later as a prosecutor in the District Attorney’s office in Etowah County. Note that this is the same county where he was later investigated prior to being appointed to the circuit court, fifteen years later. None of these allegations came up during that investigation or during his subsequent judicial career, despite continuous opposition by liberal and progressive groups for his stances opposing political correctness. For this reason, among others, it was widely reported that 72% of Alabama Republicans did not believe these allegations, undoubtedly including the vast majority of Moore’s evangelical Christian voter base.

I will first ignore the allegations of that Moore dated teenage girls who were sixteen and older; such behavior was not illegal and need not have been improper. (For the record, Moore’s wife is 14 years younger than he is.) As salacious gossip, it served little purpose other than provide a veneer of credence to the more serious allegations. (The third allegation is that he “patted the butt” of a 28 year old woman as she left his office. I would be shocked that someone would be offended enough to recall that after 40-odd years and not have said something about it to a reporter during the ensuring decades of scandal.) As to the other allegations, the then-14 year old’s mother has confirmed that they met with Moore on occasion, but has according to reports I heard on the radio said that other parts of her story could not be true. The then 16-year old who provided as evidence of assault a contract with notorious lawyer Gloria Allred and an alleged signed love letter from Moore in her high school annual that, just before the election, she admitted that she herself had partially modified. In other words, three “nothing burgers,” that amounted to he-said/she-said based on 40 year old memories.

But coming out six weeks before the election, they trashed Moore from a 10+ point lead over Democrat Doug Jones in the Senate race, to as much as 10 points behind, to finally lose the election by 1.5 points. Since the election, it has also come out that:

> Some pundits allege that some Democrat counties reported more votes than registered voters. There is a video circulating of Jones supporters claiming the came from out of state to vote for him. The Alabama Supreme Court has apparently given permission (though not orders) for counties not to preserve the ballots in this race.

In my opinion, Moore was a flawed candidate, and not the one I would have preferred, but his base of evangelical Christian voters supported him against Luther Strange (also a flawed candidate because of his connection to disgraced Alabama governor Robert Bentley, who left office early this year over an affair in office, and progressive senate RINOS such as Mitch McConnell) and very nearly carried him against Jones in the general election. (The first tier primary candidate, Representative Mo Brooks, who came in third against Strange and Moore, had surgery for prostate cancer on Friday December 15, and admits to now being glad he had not won the primary because it would have delayed his diagnosis for a critical few months).

It should be noted that, as of this writing, Moore has not yet conceded the race, waiting for the absentee vote to come in, which mathematically is enough to change the outcome or at least to trigger an automatic recount under state law. Moore is being widely pilloried for this. On the other hand, as someone who maintains that he has been tried and convicted in the court of public opinion for a crime he did not commit, not using every resource at his disposal to keep his chances alive would be both wrong, and contrary to his character. And if his loss is sustained through the absentee balloting and through a possible recount, don’t be surprised if he turns to the courts for the justice he says he was falsely denied at the ballot box. His history shows him to be a fighter for what he believes.

In conclusion, whether the he-said, she-said allegations are true or false (and for the reasons above, it is very difficult for someone who has paid attention to Alabama politics to believe them), the candidate who would have stood against the progressives of both parties and generally for President Trump was blown from the race. And, whether these allegations against Moore are true or false, we can rest assured that any future anti-progressive candidate faces personal destruction based on either the resurrection of his (or her) better forgotten personal history’or though its falsification. Also, most of the generalizations about this election in the main-stream media’including such organizations as the Wall Street Journal’ignore that as bad a candidate Moore might have been on other grounds, he lost due to the late-breaking (false) allegations and the most divisive and best funded Democrat campaign in Alabama history. Both were necessary, and this does not represent a general principle that the Republican cause is dying under Trump.

That said, Conservatives and Libertarians are going to have to fight even harder for their candidates now, if we are going to have an chance at all to restore Constitutional and libertarian principles via the soap box, the ballot box, and the jury box. Else, Fredrick Douglass’s other box of American liberty may still come into play.

Acknowledgements: This essay was modified based on comments from our esteemed publisher, for which I thank him.

Note: While I frequently heard Moore’s opponents speak of his racism, I have observed nothing of it myself beyond his wife’s rather awkward denial of racism and antisemitism late in the race, so I have left it outside the scope of this essay.

References: I have refreshed my memory on dates and events using https://en.wikipedia.org/wiki/Roy_Moore and references therein, which offers considerable additional detail should anyone be interested.

Historical Tidbit: Moore’s home town, Gadsden, Etowah County, Alabama, is named for the grandson of Revolutionary War hero Christopher Gadsden, who gave us the Gadsden Flag.

Also a note on Republican governors of Alabama. Guy Hunt, a minister, was forced to resign from office on conviction of using state resources to support his religious ministry, and as noted Robert Bentley had to resign in the aftermath of an affair in office that also cost him his marriage. On the Democrat side, everyone knows about George Wallace. Don Siegelman, midway between Hunt and Bentley, spent six years in prison on bribery charges related to his gubernatorial duties, though many believe that was a political hatchet job.