First it was the Ten Commandments, then same-sex marriage. Alabama chief justice in hot water again

For the second time in 13 years, Alabama Chief Justice Roy Moore, the contentious Deep South jurist who urged probate judges across the state not to issue marriage licenses to same-sex couples, stood trial Wednesday on charges of violating the canons of judicial ethics.

If found guilty, he could be ousted from the bench for a second time.

Shortly after sunrise, scores of evangelical Christians bowed their heads in prayer and pledged allegiance to the U.S. flag on the steps of the Alabama Judicial Building before a special ethics panel assembled for the one-day trial.

Many stood and applauded as Moore strode into the courtroom he had presided over for years, beaming confidently and wearing a dark business suit rather than his traditional judicial robe.

On the witness stand, Moore, a fervent 69-year-old Baptist who was dubbed the “Ayatollah of Alabama” by one civil rights group, called the scrutiny of his ethical conduct “ridiculous.”

“I would not defy a federal court order," Moore testified before a panel of seven men and two women. "I ruled in accordance with the law.”

It is not the first time Moore has faced sanction. In 2003, he was ousted from office after repeatedly refusing to obey a federal court order to remove a Ten Commandments monument from the rotunda of the Alabama Judicial Building.

"We are here 13 years later because the chief justice learned nothing from that first removal," prosecutor John Carroll argued on behalf of the Judicial Inquiry Commission. “He continues to defy the law … without repentance and without remorse.”

This time, Moore faces six charges stemming from a controversial order he sent Alabama probate judges in January, instructing them that they had a “ministerial duty” not to issue any marriage licenses to same-sex couples, despite the U.S. Supreme Court ruling legalizing such unions.

If the special disciplinary panel of judges, lawyers and private citizens finds Moore abused his office, he faces a range of penalties, from censure to suspension without pay and removal from the bench. Removal from his position would require a unanimous vote. The panel will issue a decision within 10 days.

Moore’s position this time is a little different than it was in 2003, when he openly admitted he was flouting a federal court order to remove the Ten Commandments monument.

In the case of same-sex marriage, Moore maintains he did not instruct judges to defy the federal courts. Rather, he merely issued a “status report” to clear up confusion among probate judges, instructing them that the effect of the federal ruling on existing cases was still awaiting a decision by the Alabama Supreme Court.

“You don’t have a defiant chief justice before you, I respectfully submit,” said Mat Staver, Moore’s lead counsel, who is a founder of the Florida-based Liberty Counsel and also represented Kim Davis, the Kentucky clerk who refused to issue marriage licenses to same-sex couples.

Moore’s stance marks something of a last-ditch stand in the ongoing battle between the state and federal judiciary over same-sex marriage. In January 2015, a federal judge ruled that same-sex couples had a right to wed in Alabama. But two months later, the state Supreme Court declared that Alabama’s marriage laws, which ban such unions, were constitutional and ordered probate judges to enforce them. In June 2015, the U.S. Supreme Court legalized same-sex marriage in its landmark Obergefell vs. Hodges ruling.

The U.S. Supreme Court’s decision, Moore has argued, does not extend to Alabama but applies only to Kentucky, Michigan, Ohio and Tennessee. His stance contradicts the rulings of federal district and appellate courts with jurisdiction over Alabama.

After Obergefell, U.S. District Judge Callie V. Granade ruled that it was binding on the state. In October, the U.S. 11th Circuit Court of Appeals, which includes Alabama, said Obergefell “held that bans on same-sex marriage are unconstitutional” and “abrogated” existing orders.

Prosecutors contend that Moore — who once referred to homosexuality as “abhorrent, immoral, detestable, a crime against nature and a violation of the laws of nature and of nature’s God” — was on a mission to defy the Supreme Court decision.

Last year, Moore wrote a letter to Alabama Gov. Robert J. Bentley, urging the state to join him in standing up to the “judicial tyranny” of federal courts ruling in favor of same-sex marriage.

In a public viewing room two floors below the courtroom, Moore's supporters began to jeer and heckle as prosecutor R. Ashby Pate delivered closing arguments, laying out his case for how Moore violated multiple canons of judicial ethics and used “every tool at his disposal to defy the federal courts.”

"This is not the act of an impartial judge,” Pate said. “It’s the act by a judge with an agenda who wants to see a very specific outcome, and who thinks and acts like he does not have to follow the law."

Moore's order was incomplete and misleading, Pate added, in that it neglected to mention that the U.S. Supreme Court held that all states were bound by its decisions. That question, he said, was settled in 1958 when Arkansas defied the federal Brown vs. Board of Education ruling to desegregate schools.

"That was 60 years ago and the chief justice is somehow suggesting this is somehow an unsettled question," Pate said.

"The game of constitutional chicken is over," he added.

Moore, a West Point graduate who fought in Vietnam and once worked as a cattle rancher in the Australian outback, has long been a folk hero to evangelical conservatives. When campaigning for reelection as Alabama’s chief justice in 2012, he was open about his views on same-sex marriage, telling a tea party rally that gay marriage would be “the ultimate destruction of our country because it destroys the very foundation upon which this nation is based.”

Many speculate that Moore, who cannot run for chief justice again because of age restrictions, may use this latest controversy to begin a new campaign for governor or attorney general. 

“Nothing plays better in Alabama than giving a finger or thumbing a nose to the feds,” cartoonist J.D. Crowe wrote on www.Al.com.

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UPDATES:

3:30 p.m.: The story was updated throughout with new details.

10:10 a.m.: The story was updated with Moore’s arrival at court.

The story was first published at 7:45 a.m.

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