Last week, Alabama’s Supreme Court ruled that women who use chemical substances during pregnancy may be charged with child endangerment. The case, Hicks v. Alabama, has been controversial due to its possible implications for abortion access. Now more controversy abounds, given new evidence that at least one justice based the ruling on his personal religious beliefs.
In his concurring opinion, the court’s chief justice, Roy Moore, peppered his arguments with biblical references and promoted the debunked notion that American law has uniquely Christian roots.
“I write separately to emphasize that the inalienable right to life is a gift of God that civil government must secure for all persons—born and unborn,” Moore began.
It’s a dubious beginning – and things devolve quickly from there. Moore then turned his attention to the Declaration of Independence. “When it was signed by our Founding Fathers in 1776, the Declaration returned to first principles of God, His law, and human rights and government,” he wrote. He went on to claim that Thomas Jefferson wrote the Declaration with Sir William Blackstone’s legal treatise in mind.
That reference will be obscure to most; Blackstone is best known for writing Commentaries On The Laws Of England. And Blackstone, Moore wrote, “recognized that God's law was superior to all other laws.”
Moore is clearly trying to make the argument that Jefferson, like Blackstone, had a specific interpretation of the Bible in mind when writing the Declaration. Although the Declaration is not a legal document, Moore attempts to make the case that it’s evidence our Founding Fathers believed that human rights came from God.
Moore is wrong about Jefferson – the reference in the Declaration is to a deistic “Creator” – but why is that relevant to this ruling anway? According to Moore, this is all evidence that the right to life – which he defines as an anti-abortion stance – is a divine right that should be enforced by government.
“Although not the source of our rights, governments are instituted in order to ‘secure these rights’ given by God,” he wrote.
Perhaps the most astonishing section of Moore’s opinion is a bizarre tangent on the Nuremberg trials. If you’re unfamiliar with the topic: Nazi officials were tried for crimes against humanity in Nuremberg, Germany, at the end of World War II.
You could be forgiven for failing to see how this relates to pregnant women in Alabama. Moore tenuously connects the two subjects by arguing that Nuremburg’s Nazis were found guilty of crimes even though they hadn’t technically broken the laws of Germany that existed at the time.
According to Moore, this is evidence that, “The law of nature and of nature's God therefore binds all nations, states, and all government officials – from Great Britain to Germany to Alabama – regardless of positive laws or orders to the contrary.”
Moore concludes his opinion by declaring that the state of Alabama has a divine obligation to protect unborn children, and offers this as his justification for his ruling. The implication here is startling. Moore is not just saying that divine law exists, he’s asserting that it should receive preference over secular law.
This wouldn’t be the first time Roy Moore flouted the First Amendment. As many of you know, Americans United, the American Civil Liberties Union and the Southern Poverty Law Center sued him in the 1990s after he refused to remove a two-ton Ten Commandments from the state judicial building.
Moore lost in court but defied the ruling and refused to have the monument removed. In an interview with CNN, he explained his objection.
“And I think there's too many things going on in this country about the removal of God from our life. And it's fundamental. Actually, the organic law of our country establishes God as the basis for our justice system,” he said.
Moore was eventually removed as Chief Justice after an ethics panel unanimously found that he had “willfully and publicly” disobeyed the law. But that finding didn’t prevent him from holding future office, and he ran successfully for reelection in 2012.
His opinion in Hicks v. Alabama is nothing short of a direct attack on the very concept of separation of church and state. It’s evident he believes that our Founding Fathers never meant for such separation to exist; in fact, he entirely disregards secular law.
As chief justice of a state supreme court, it’s Moore’s responsibility to uphold the law of the land, not to advance a theocratic agenda. He’s failing at his job, and, despite what Moore might like to believe, the Founding Fathers aren’t on his side.