You have to hand it to Judge Roy Moore. It takes real balls to give a speech praising Plessy vs Ferguson minutes after a group of African-American pastors has hung a “Letter from the Birmingham Jail Courage Award” around your neck. Seriously, that's what happened yesterday in Montgomery.
Moments after CAAP leader, Rev. William Owens, praised Moore and honored him with a medal, Moore took the podium and mentioned that he just happened to have a copy of the Plessy vs Ferguson decision on his desk, then proceeded to quote from it at length. Admiringly – and out of context.
If you're not familiar with the decision, it's one of the most embarrassing pieces of writing ever to come out of the US Supreme Court:
Plessy v. Ferguson, 163 U.S. 537 (1896), was a landmark United States Supreme Court decision upholding the constitutionality of state laws requiring racial segregation in public facilities under the doctrine of “separate but equal“.
The decision was handed down by a vote of 7 to 1 with the majority opinion written by Justice Henry Billings Brown and the dissent written by Justice John Marshall Harlan. Louisiana Justice Edward Douglass White was one of the majority: he was a member of the New Orleans Pickwick Club and the Crescent City White League, the latter a paramilitary organization that had supported white supremacy with violence through the 1870s to suppress black voting and regain political power by white property owners.
Moore said that the Justices' words in Plessy vs Ferguson “seem to ring true to the issues before this country today about same sex marriage because it “takes away the institution of marriage as being between one man and one woman.”
He then invoked state percentages in favor of “one man, one woman” marriage. 81% in Alabama and 75% in Texas. Wonder what Alabama & Texas voters would have decided if “Plessy vs Ferguson” or later civil rights cases had come to a statewide vote that allowed citizens to vote on whether their fellow citizens would have equal rights?
Quoting from Plessy, Moore continued:
“There is a dangerous tendency in these latter days to enlarge the function of the courts with judicial interference in the will of the people as expressed by the legislature. In my opinion the decision this day will in time prove quite as pernicious as the decision made by this tribunal in the Dred Scott case.
Moore: “I believe those words could be applied to day to any court that recognizes marriage as anything between one man and one woman.”
But there's a problem: Moore skipped a lot of good stuff to get to Dred Scott:
There is a dangerous tendency in these latter days to enlarge the functions of the courts by means of judicial interference with the will of the people as expressed by the legislature. Our institutions have the distinguishing characteristic that the three departments of government are coordinate and separate. Each must keep within the limits defined by the Constitution. And the courts best discharge their duty by executing the will of the lawmaking power, constitutionally expressed, leaving the results of legislation to be dealt with by the people through their representatives. Statutes must always have a reasonable construction. Sometimes they are to be construed strictly; sometimes liberally, in order to carry out the legislative [p559] will. But however construed, the intent of the legislature is to be respected, if the particular statute in question is valid, although the courts, looking at the public interests, may conceive the statute to be both unreasonable and impolitic. If the power exists to enact a statute, that ends the matter so far as the courts are concerned. The adjudged cases in which statutes have been held to be void because unreasonable are those in which the means employed by the legislature were not at all germane to the end to which the legislature was competent.
That last bit Moore & company have issues with, so he didn't quote it. Instead, he skipped the rest of the paragraph and jumped directly to a reference to Dred Scott.
All the lead up speeches were pretty boring, but things really got interesting when Moore started taking questions from reporters. There was a British reporter in the group, and he pressed Moore pretty hard on the issue of marriage equality.
British reporter asked (the audio doesn't pick it up well) Moore why he “persists in discriminating against gay couples” when they just want the same rights to love as you (Moore) has.
Moore: Marriage isn't based on love; marriage is based on the law. In Massachusetts recently, they allowed three women to get married. Do they allow three women in the UK? Why don't they allow three women to get married in the UK if “marriage is based on love?”
Reporter: We do have same sex marriage.
Moore: But do you allow three women to get married? I'm asking you?
Reporter: We don't.
Moore: But if it's based on love, why not?
The reporter finally managed to get Moore off the obviously titillating subject (to him, at least) of “three women getting married,” and got him to acknowledge that a SCOUTUS decision in favor of marriage equality would set precedent that Alabama would have to follow.
Fact finding discovered that the women did not get legally married; they had a lawyer draw up contractual relationship guidelines that they all signed.
A different reporter then took his turn.
New reporter: What do you think about being compared to Dr. King?
Moore: Dr. King was a great man. He stood up for the civil rights of people who were having them taken way because of the color of their skin. […] Because it was a violation of our Constitution, it was something right to stand up for. I think Dr. King would appreciate Rev. Owens stand up here today saying that this is another civil right.
At that point, Rev. Owens had to jump in with this rather off-topic hypothetical: (about 8:30 in the video)
“What if President John Doe ran for President and you gave it to Mr. Brown? The people voted for John Doe and then you give it to Mr. Brown by some crooked methods? Then that would not be a Democratic society.
What does your vote mean? So the peoples' votes were taken and thrown away because of what some individuals wanted. Three or four percent of the population.
Now what about the Christian rights? They tell us what we can do and what we can't do. They're ruining our children! It's not about them getting equal rights; they're taking our rights.
I think even Moore was astonished by that tirade, because he rushed in to clarify:
“It's an important distinction he's making here. It's been reported the press how various states have adopted same sex marriage. I'm here to say they haven't adopted same sex marriage. Only three states have voted by popular referendum.
The other states have been forced by courts to distance themselves from their laws and attitudes regarding marriage. The problem is that federal courts have no authority in that area.”
He then cited US vs Windsor, which last year struck down the Federal Defense of Marriage Act (DOMA).
But DOMA struck down a federal law passed by Congress; it didn't address state laws and the majority opinion is scathing on it:
“The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity.”
Isn't that what state laws against marriage equality do as well?
At this point, the British reporter obviously couldn't stand it anymore and jumped back in. (Approximately 11:20 in the video)
Reporter: Judge Moore, this lesbian couple (referring to the couple from Mobile) doesn't want any special rights. They just want the right to marry the person they love. Why do you think authorizing same sex marriage takes away rights from people like yourself?
Moore: It takes away the very definition ordained of God. Changing the definition destroys definition. It's not about the right to marry. There is a right to marry in the Constitution, but it's between a man and a women. (ummm…. what section is that in, please? OR are you “interpreting,” Judge Moore?)
there's some garbled back & forth….
Moore: “A man can marry a woman and have children! Two men can't do that.”
Reporter: But I don't see why it takes away your rights. Dr. Owens, why does allowing a man to marry a man or a woman to marry a woman take away the rights of a man to marry a woman?
Owens: First of all, It's not natural law. And it's immoral. It is not natural for a man to be married to a male. It's not natural. And that's what this award was about. Dr. King emphasized it must line up with natural law. And if you believe so much that a man should marry a man or a woman should marry a woman, go try it with electricity.
After that bizarre statement, the room fell silent for several seconds. The indefatigable British reporter tried a follow-up, but an organizer stepped in to stop the Q&A.
Watch the video here. And note just how, well… white… the assembly is for a “Coalition of African American Pastors” event.