I Hate to Break This to You, Judge Moore, but God Did Not Actually Write the US Constitution

It was in 1832 that the first Nullification Crisis occurred. Oddly enough, it was not about slavery, but rather about money. In 1828 and 1832 Congress had passed two acts establishing protective tariffs, which benefitted the manufacturers of the North and harmed the agricultural interests of the South. South Carolina was the state that was most upset about this state of affairs.

The leading politician in South Carolina, John C. Calhoun actually resigned the Vice-Presidency so that he could more effectively lead the opposition to the tariff legislation. The South Carolina legislature passed a law that if the objectionable tariffs were not reduced further (they had been reduced between the 1828 act and the one of 1832) South Carolina would resist their collection by force of arms. The President was Andrew Jackson, a fellow Southerner to Calhoun and a slave-owner. He would have none of it and got Congress to pass a law authorizing him to use force if South Carolina did the same. In the end, the tariffs were reduced a bit further, both sides backed down, and violence was averted.

The next nullification crisis, in 1861, led to the First Civil War. This one was not over something that the Federal government had actually done, but what it, under Lincoln, the Federal government might do. Lincoln was a strong opponent of the expansion of slavery to the Territories (although he had made a clear pledge not to interfere with slavery in those states in which it existed at the time). Nevertheless, as is well-known, well before Lincoln was inaugurated, led by South Carolina, 11 states seceded and . . . . Other attempts at nullification or one sort or another took place in the South around the issue of school integration (see Gov. Faubus in Arkansas and Gov. Wallace in Alabama).

Now we are faced with another act of nullification by an organ of state government, the State's Supreme Court in the person of its Chief Justice, against the Federal judiciary in general and the Supreme Court of the United States in particular. Interestingly enough, the issue this time around is neither money nor slavery but rather the role of theism in making both Federal and state law.

Following recent rulings of several Courts of Appeals and, in a related case, the "Defense of Marriage Act," that of the Supreme Court, a Federal District Court judge ruled that the provision of the Alabama constitution banning same-sex marriage violates the U.S. Constitution. The Alabama Attorney General applied for a stay to the Supreme Court, pending its expected nation-wide ruling on the matter scheduled for the Spring, and that application was denied. It was then generally expected that gay marriage would move forward in Alabama. Not so fast, said Chief Justice Moore. Legal marriage in Alabama is under the jurisdiction of a slice of the Alabama judiciary called "Probate Court Judges," and at least some of them were prepared to go ahead and marry gay couples (and a few did). But Judge Moore said "no you don't." Even though a Federal Court had handed down a ruling and the Supreme Court refused to grant a stay, Judge Moore ordered the Probate Court Judges not to perform marriages of gay couples.

There are many issues in play here. But the central one is this. In Alabama, whatever churches might do in terms of ceremonies, legal marriage is clearly a civil institution, governed by civil, not theistic, law, and implemented by Probate Court Judges operating under a body of civil law. Found in the 14^th Amendment to the Constitution is the following proviso: "No State shall . . . deny to any person within its jurisdiction the equal protection of the laws." However, Chief Justice Moore does not see the difference between civil marriage and religious marriage. He has made it very clear that his personal opinion about what the nature of marriage is based on his personal religious beliefs. He stated that forthrightly in an interview with Chris Cuomo of CNN between 8:30 and 9:00AM EST on Feb. 12, 2015.

For the Judge, it is his religion that tells him what the nature of marriage is: "between one man and one woman, as ordained by God" and in his case, based on other statements he has made over time, that would be a Christian God, in the sense that he means "Christian God." (Of course, "Christian" means many things to many people. Many gay folks who marry one another regard themselves as Christians and there are many Christian pastors who marry gay couples. But that is a discussion for another time.) Interestingly enough, the Judge did not attempt to use the Constitution to back up his argument. For on the one hand there is that inconvenient 14^th Amendment and on the other neither the word "God" nor the word "Christian" appear in it. Rather the Judge falls back on a document that the Christian Right is increasingly trying to use to support its arguments, that is the Declaration of Independence.

There are two problems with this one. First, the Declaration, as grand and historically important as it is, is not part of the Constitution and has no governing power. Second, while the word "God" does appear in it, it used in the context of the terms "Laws of Nature and Nature's God" as entitling "one people to dissolve the political bands which have connected them with another. . . "That doesn't help the theists much. So Judge Moore falls back on the famous "endowed by their Creator" clause. The problem for him there is a) in this context the drafters specifically used the term "Creator" rather than "God," and b) the word "Creator" can mean anything. For me, as a reasonist, (yes, that, not "atheist" is the opposite of "theist," but that too is a discussion for another time) "Creator" means the universal laws of biology, chemistry, and physics.

Of course, Judge Moore would have none of this. His God, or rather his concept of "God," tells him what is right and what's wrong that's that . As it was put by Richard Fausset of The New York Times, " 'Now we see the federal courts moving to take away institutions ordained of God, and recognized by the people for hundreds and even thousands of years before this country came into being,' [Judge Moore] said. The definition of marriage, he said, should not be left to federal judges. 'Courts are just people,' he said. 'They're just men and women dressed in black robes who have no power to re-declare, or declare, the social foundation of this nation as being unconstitutional.' "

Except that many of us in the U.S. either do not see marriage as an "institution ordained by God," or if we do, we, such as the many Christian gay couples who are married, see it quite differently than Judge Moore does. And that is one of other reasons we have a court system, to sort out problems like this one, within the boundaries of the Constitution in general, and in this case very particularly within the provisions of the Equal Protection clause of the 14^th Amendment.