When a federal court recently struck down Alabama's same-sex marriage ban, it wasn't Governor Robert Bentley who insisted on repeating George Wallace's ludicrous theatrics of treason, defying the authority of federal law and the Supreme Court. It was Alabama's Chief Justice Roy Moore, ordering probate judges to ignore the federal court order and refuse to issue same-sex marriage licenses. The local media, to its credit, knew exactly what was going on:
Bentley refused to become the next Alabama governor making a show of defying the law in front of TV cameras and in the process sending the message that our state is still intolerant and a lawless place for some of its citizens who happen to be different from the majority.
But what Bentley refused to do, Moore did do. He is trying to stand in the courthouse door as surely as Wallace stood in the schoolhouse door. Shame on him.
At "The Daily Show," Jon Stewart went for the foolish hypocrisy angle—or at least one of many: Moore and the probate judges following his lead explicitly invoking the Bible as the reason to reject same-sex marriage violates the Alabama Constitution, as just amended in the last election. Stewart played a clip from WSFA 12 news, last Nov. 3, describing the newly passed, so-called “Sharia Law” constitutional amendment, “It would prohibit judges and other state officials from basing any of their decisions on 'foreign law,'” the newscaster explained in the clip. Pregnant pause. Then Stewart asked, "Where was the Bible written, again?"
It's not so much that people want to laugh at Alabama's idea of sober judicial leadership. But what are the alternatives? Anything less leads deep into darkness and confusion. Taking Moore seriously certainly doesn't work, as CNN's Chris Cuomo discovered, much to his chagrin. Moore is a first-rate dissembler and fabulist, who even tried comparing the federal judge's order (and the Supreme Court's refusal to stay it, which he manfully tried to ignore) to the Dred Scott and Plessy vs. Ferguson decisions, in an attempt to portray his own (sort of) Bible-based gut-level bigotry as just like being opposed to the (somewhat more than sort-of) Bible-based bigotry of slavery and segregation!
Comparing Moore precisely to Wallace may be mistaken—the differences are as instructive as the similarities—but Moore is actually more deeply reactionary than Wallace ever dreamed of, burrowing ever deeper into his bigoted rationalizations, rather than moving on and adjusting. Although Wallace's infamous “Segregation now, segregation tomorrow, segregation forever!” pronouncement was unflinchingly categorical, he dropped that support like a hot potato when it became untenable after Martin Luther King's watershed “I have a dream” speech. As Taylor Branch noted just before the 50th anniversary of the March on Washington, Wallace led the way in disavowing classical racism, creating a new brand of “principled conservatism” in the process:
By the end of 1963, with segregation losing its stable respectability, he [Wallace] dropped the word [segregation] altogether from a fresh stump speech denouncing “big government” by “pointy-headed bureaucrats,” tyrannical judges, and “tax, tax, spend, spend” legislators. He spurned racial discourse, calling it favoritism, and insisted with aplomb that he had never denigrated any person or group in his fight for local control.
Wallace's complete rewrite of his history was typical of conservatism more generally. Conservatism varies widely in time and space, but it always manages to invent a mythic history for itself, making it the only logical alternative—even if that means a 180-degree turn from what it was saying five minutes before. But don't expect Moore to suddenly shift gears as Wallace did. This is not one of those 180-degree moments. Wallace set conservatism off in a new direction, while Moore represents a culmination of that process over a period of decades, in which a bizarre, far-flung structure of historical lies and misleading fabulist narratives has been constructed and disseminated by a network of Christian Reconstructionists who want to remake America along the lines of "The Handmaid's Tale." To help spread their influencce, they've invented an entire alternative history universe, which the mainstream media and punditocracy continue to misunderstand, misrepresent or ignore. Moore and his supporters live in that alternative universe, and it's only by studying them and their core lies that we can hope to get a fix on what they are really about.
An excellent place to start down that path in this particular instance is a post at Rightwing Watch by Brian Tashman, “Roy Moore's Showdown with the Courts Over Gay Marriage Tied to the Work of Neo-Confederate Leader.” The leader in question is Michael Peroutka, a third-party presidential candidate in 2004, who I wrote about last August, when he was running as a Republican for a county commission seat in Maryland's Anne Arundel County. As I wrote at the time:
Then there’s the Maryland GOP, which has its hands full with a wealthy, self-funded county council candidate, Michael Peroutka, who’s a past leader of the League of the South, a group that thinks the wrong side won the Civil War, and whose president, Michael Hill, recently openly fantasized about creating their own three- to five-man death squads. The squads’ “primary targets will not be enemy soldiers; instead, they will be political leaders, members of the hostile media, cultural icons, bureaucrats, and other of the managerial elite.” There’s even a videotape of Peroutka leading a meeting of the League of the South in singing “the national anthem,” as he introduced it—yes, “Dixie.”
The League of the South recently announced it will be celebrating the 150th anniversary of Lincoln's assasination this coming April, in case there were any lingering doubts about where their sentiments lie. And as for our current president, Peroutka's organization, the Institute on the Constitution, proudly hosted a speaker who argued that “President Obama is not eligible to be president of the United States because he is not a 'natural born citizen' as defined by Article II of the Constitution, which was based on Deuteronomy 17,” as reported by Sara Posner of Religion Dispatches. I'll have more to say about Peroutka, who went on to win his seat in the GOP wave, below, including his purely cosmetic resignation from the League of the South, which he insisted was not for anything in their politics or ideology. But for now let's return to some of what Tashman had to say:
Moore’s call for statewide defiance of the federal judiciary’s “tyranny” stems from a belief that the Constitution was made to protect biblical commandments, so that anything that goes against his personal interpretation of the Bible is therefore in violation of the Constitution.
Moore shares that belief with a powerful ally: Michael Peroutka, a neo-Confederate activist who is also one of the most influential behind-the-scenes figures in the Religious Right’s reimagining of American law.
Peroutka... promotes this theocratic view of the law through his group the Institute on the Constitution. Speaking at an event at the Institute in 2011, Moore gushed that Peroutka would help lead America to a “glorious triumph” over the federal government’s “tyranny.”
But Peroutka is more than a friend and ideological ally to Moore: he has funded Moore’s activism for more than a decade, and in 2012 bankrolled Moore’s successful campaign for the top seat on the Alabama Supreme Court.
Indeed, in early 2012, the Montgomery Advertiser reported that $50,000 of the $78,000 Moore had amassed through the end of 2011 came from Peroutka. “Donor tied to extremists,” the headline read. But the story reported, “Moore said his campaign does not have secessionist ideas and that he believes 'all people are created in the image of God.' Except for gays and lesbians, obviously. Moreover, his denial of secessionist tendencies clashed with his claim that Peroutka's support was principled. "His interest is simply in supporting someone, like myself, who supports the U.S. Constitution," Moore claimed. But Peroutka's “support” for the Constitution is inextricably bound up in secessionist beliefs.
Peroutka's financial support for Moore's campaign was only a fraction of his overall support, as Tashman's account made clear. Without Peroutka's financial backing, Moore might have simply disappeared from sight:
After Moore was removed from his original position on Alabama’s high court in 2003 for defying a federal court order to remove a monument of the Ten Commandments from the state judicial building, Peroutka paid for the ousted judge to go on a national speaking tour to build support for his cause. He also funded a group that held rallies in support of Moore.
Over the nine years, Peroutka contributed over a quarter of a million dollars to two groups founded by Moore, the Foundation for Moral Law (which is now run by Moore’s wife Kayla) and the now-defunct Coalition to Restore America.
In 2004, the far-right Constitution Party tried to recruit Moore to run for president on its ticket. When he declined, Peroutka stepped in to run in his place.
Such long-standing ties signify a much deeper convergence in thinking than Moore's bland vanilla claim to the Memphis Advertiser might suggest. And the occasional gestures by both men to throw casual observers off the scent should always be evaluated in light of the larger picture. This applies equally to Peroutka's mid-October announcement that he had resigned from the League of the South, as well as Moore's repeated attempts to portray his anti-gay bigotry as in harmony with—if not the modern equivalent of—support for black equality in our nation's past. If you believe George Wallace's claim that he had never denigrated any person or group, then these are the guys for you. But if you remember “Segregation now, segregation tomorrow, segregation forever!” you just might want to question anything they claim.
First, consider Peroutka's incoherent explanation for why he left the League of the South. At the time I wrote for Salon in late August, Peroutka had only recently convened a press conference, under severe pressure, in which he insisted that he wasn't a racist—those who attacked him were—and that he had no intention of leaving the League of the South. However, in mid-October, just two weeks before the election, the Baltimore Sun reported that he had left the League, around the time my story had run, but for inexplicable reasons:
Peroutka, a Millersville Republican, said he left the group prior to Labor Day because he discovered statements members made on the subject of being opposed to interracial marriage were “contrary to my beliefs." He would not elaborate.
Though his League of the South membership drew criticism during the campaign — "Everybody wants to talk about League of the South all the time," he said — the decision to quit the group was not politically motivated, Peroutka said.
“I didn’t do it to bring up any political points,” Peroutka said. “I dont have any problem with the organization.”
Peroutka said he still stands by the group's stances on self-government and conserving southern heritage.
The lack of any serious differences were further underscored, when Peroutka won the election, and was congratulated by League President Michael Hill. His resignation was kabuki theater, nothing more
Even in its own terms, the account was nonsensical, since he remains quite friendly with Hill, who is himself opposed to racial intermarriage. But that's relatively common among Southern conservatives: about 20 percent of them held such views from 2000 to 2012, according to the General Social Survey. Given that the League of the South appeals overwhelmingly to this demographic, it would have been truly shocking if there weren't members who felt this way. What did Peroutka expect to find there? Who's he trying to kid?
At the same time, the League's official policy since its founding had been opposed to racial integration in the private sector—artfully phrased by saying, “we believe in a Southern society that.... Values and sustains true freedom of association.” As Rand Paul will tell you, “true freedom of association” means discrimination. And Peroutka never had a problem with that.
In short, his resignation was just political theater: Peroutka needed an opportunity to perform the pretense of anti-racism, without actually doing or saying anything to alienate his like-minded base. That finely-tuned balance was precisely the point, and it worked perfectly with those who wanted to believe his performance, who were just enough to help him get elected in the GOP wave, with a little extra help from a Nixon-style, last-minute dirty-trick anti-gay robocall, which Peroutka also unconvincingly denied any knowledge of.
This is how Peroutka operates, a master of contradictory mixed message delivery, highly skilled at crafting beautiful lies in the best Southern tradition. He's closely aligned with the Southern secessionist white supremacist base, but he's particularly focused on trying to make it seem mainstream, spinning out an alternative-history view of the world. As happened here, this sometimes requires him to play distancing games, but he effortlessly paired that distancing with blatantly open assurances of continued allegiance.
Peroutka and Moore both make a similar basic argument. Its full-blown form runs as follows: Gay marriage is against “God's law,” and the Constitution is based on “God's law” (the Bible), ergo gay marriage is unconstitutional, and judges who say otherwise are violating their oaths, and need not be obeyed—in fact, they should be impeached, and if not, their continued officeholding may be grounds for (a) nullification and/or (b) secession, because it is a form of tyranny. Peroutka has openly touched all the bases on this argument, while Moore has at least gone as far as calling for impeachment, as Sara Posner reports, but no one should be surprised if he's willing to go all the way. The ease with which he ignored a Supreme Court ruling—declining to stay the same-sex marriage order—certainly would suggest that he might be just as comfortable with nullification and secession as his good friend Michael Peroutka is.
The above argument has more holes than a sieve if you bore down into all the details. But even the big picture leaves it looking ridicuous. The Bible is utterly silent about lesbians, for starters, and never actually says anything about gay marriage, per se. Plus, what it does say about homosexuality itself is far more debatable than anti-gay activists allow. But those problems pale in comparison with the claim that the Constitution is based on “God's law,” a central tenet of Christian Reconstructionism, which aims to “return” America to it's Biblical foundations—regardless of the fact that no such political-religious foundations actually exist.
Of course, Christian Reconstructionists don't always pretend like this. Sometimes they have to face reality in order to scheme about how to change it. In a story that Frederick Clarkson wrote last March, about Peroutka's close friend and pastor David Whitney, who ran for the same county seat in the Democratic Primary—and advanced ideas about limiting citizenship on religious grounds—he touched on some of the history of this line of thinking:
Christian Right theorist Gary North, a prolific and influential Christian Reconstructionist writer, has long recognized that the problem theocrats have (and he does not shy away from the word or the idea) is that the Constitution of the United States and those who authored it and the states that ratified it were explicitly rejecting theocracy....
But the wily North believes that the theocrats can prevail in what he thinks will be "an escalating religious war." He thinks that the answer for theocrats is very much like what Whitney prescribed. He thinks that the Constitution can be amended to limit citizenship to members of the correct sect, and that, "The long term national goal has to be the substitution of a Trinitarian national oath for the present prohibition against religious test oaths."
So, that's what they really believe, when they're not putting on a show. But for some folks, the show must always go on. And hence we have fabulists like Peroutka and Moore. Which brings me back to Moore's recent performance on CNN, alluded to above.
In that appearance, Moore cast himself as a principled opponent to a “lawless” federal court passing down decisions like Dred Scott and Plessy vs. Ferguson. And because our media covers conservatives so superficially, the host, Chris Cuomo, was flummoxed, apparently knowing nothing about Moore's actual long-standing ties to Peroutka, and through him, to the League of the South. Moore first pretended he was not violating federal law:
CUOMO: So the basic question is, the federal law should rule and it says to the attorney general of your state, allow the marriages to go forward. Why are you resisting that?
MOORE: Because that's not the federal law. What you're confusing is law with an opinion of a justice, and that's the basic fallacy which all this is built upon. What did one lone judge in Alabama federal court says is not law. If it were law, then the United States Supreme Court wouldn't be meeting to determine this issue in April through June.
This is utterly false. First, what “one lone judge” says in a court ruling certainly is law—both when they rule on substance, and when they grant or refuse stays to delay a ruling going into effect. They can be overruled, of course. But only by those who have jurisdiction over them—which Moore clearly does not. Second, it's not just “one lone judge”; it was actually the whole Supreme Court, which ruled 7-2 to uphold the judge's decision to lift the stay. "Maybe we'll change our minds later," they were saying, in effect, "but for now you have to let same-sex marriages go forward." So it wasn't just “one lone judge” whose opinion Moore was ignoring. It was a 7-2 majority of the Supreme Court. He was flat-out lying about what was going on. How moral, how Godly is that?
Moore took that same approach to a whole new level when he tried to equate his anti-gay stand with principled opposition to slavery:
CUOMO: It used to be legal to have slaves. Your state had a lot of laws on the books, like other states, where times changed and those laws had to change. And this is another example of that.
MOORE: You know slavery--slavery was wrong and in 1857, when the Supreme Court of the United States declared in Dred Scott that black people could be property, one justice dissented. He said that when a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws is abandoned, the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution. We're under a government of individual men who, for the time being, have the power to declare what the Constitution is according to their own views of what they think it ought to mean. Those words by Benjamin Curtis are exactly what's going on in the United States Supreme Court and the federal courts of this state--of this nation today.
There are so many things wrong here, I could write a book about them. But I'll just pick out a few tidbits. First, there were actually two dissents to Dred Scott, and I can't resist pointing out that the dissent by John McLean included an explicit consideration of “foreign law”! Specifically:
The civil law throughout the Continent of Europe, it is believed, without an exception, is, that slavery can exist only within the territory where it is established; and that, if a slave escapes, or is carried beyond such territory, his master cannot reclaim him, unless by virtue of some express stipulation....
There is no nation in Europe which considers itself bound to return to his master a fugitive slave, under the civil law or the law of nations. On the contrary, the slave is held to be free where there is no treaty obligation, or compact in some other form, to return him to his master. The Roman law did now allow freedom to be sold. An ambassador or any other public functionary could not take a slave to France, Spain, or any other country of Europe, without emancipating him. A number of slaves escaped from a Florida plantation, and were received on board of ship by Admiral Cochrane; by the King's Bench, they were held to be free.
Gosh, I wonder why Moore forgot to mention that? I can't imagine.
As for what he did mention, the dissent by Benjamin Curtis was completely misrepresented. Indeed, Moore misrepresents the entire issue of the case, which was not whether or not blacks could be property—under the Constitution at the time they clearly could be, and no one argued otherwise. The question was first, whether they could be freed, and thus become full citizens, and second, whether Congress could regulate slavery in the territories not yet ready to be self-governing states. The Court's decision held that blacks could not be citizens, but Curtis cited numerous examples showing that free blacks had long been treated as citizens—even before the Constitution was written in the case of Massachusetts:
It is true, beyond all controversy, that persons of color, descended from African slaves, were by that  Constitution made citizens of the State; and such of them as have had the necessary qualifications, have held and exercised the elective franchise, as citizens, from that time to the present.
However, in the passage Moore refers to, Curtis was addressing a completely different issue—the majority's effort to force slavery into the Northwest Territories, making a judicial finding between three competing theories of Congressionl power, when none of them had a clear Constitutional foundation. He laid it out thus:
[N]otwithstanding the language of the Constitution, and the long line of legislative and executive precedents under it, three different and opposite views are taken of the power of Congress respecting slavery in the Territories. [60 U.S. 393, 620] One is, that though Congress can make a regulation prohibiting slavery in a Territory, they cannot make a regulation allowing it; another is, that it can neither be established nor prohibited by Congress, but that the people of a Territory, when organized by Congress, can establish or prohibit slavery; while the third is, that the Constitution itself secures to every citizen who holds slaves, under the laws of any State, the indefeasible right to carry them into any Territory, and there hold them as property.
No particular clause of the Constitution has been referred to at the bar in support of either of these views.
Curtis's argument, therefore, was simple: this was a political dispute, not settled by any language in the Constitution, and the court should not pretend otherwise.
Moore tries to pretend this is exactly the same situation regarding gay marriage today. But this is another lie. One of the great consequences of the Civil War was the passage of the Fourteenth Amendment, which contains the Equal Protection Clause: "nor [shall any State] deny to any person within its jurisdiction the equal protection of the laws."
The argument against gay marriage bans is simple: they deny gay people the right to marry, and that denies them the equal protection of the laws. That is a strict construction of what the Constitution says—precisely what was missing in the situation in Dred Scott.
There is much, much more that could be said about Ray Moore's fanciful imaginings, as well as those of his ally Peroutka, and their avid supporters in the League of the South. But I hope to have shared enough to bring this message home: Nothing they say should be taken at face value. Journalists who wish to interview them should do their homework first, or else risk being used to help spread their destructive lies.