ohwilleke

I agree that it is at least good that the other judges did not share Mr. Moore's reasons (I'm glad someone found the actual opinion), although their failure to note that his dissent is full of crap (if not due to the fact that he dumped it on them at the last moment) is pretty bad. I wonder if the poor typesetting is a result of the majority snubbing him and denying him resources.

Still, as a concurring opinion with no objection, anyone can go into court and argue his tripe as the law of Alabama. The fact that one concurring opinon has more judges on it than another, doesn't necessarily make either invalid.

It reads as if homosexuality wasn't a big issue in the trial court, and that the big issue on appeal was whether the trial court was too narrow in defining domestic violence or just didn't believe that it had happened. The mom doesn't get points for giving up the kids to a dad she knew was no good when she did have custody of the kids either. What a disaster. Dad is the classic example of a bad parent just short of getting his parental rights terminated.

SLD

Well, as an Alabama attorney I guess I need to chime in with my two cents here. While it is true that Moore's opinion is really only his own, and does not really have precedential value, it is nevertheless a dangerous opinion that could be used to threaten freedoms we all enjoy. If scripture is the basis for our common law, then we are indeed in deep trouble - and I will refer you to the multitude of other discussions going on in other message boards about the horrors of Biblical law. It as if Moore and the folks at <a href="http://www.tencommandments.org" target="_blank">www.tencommandments.org</a> are on the same team - a team which is utterly opposed to the secular society created by the Constitution.

3 years ago this March, Alabama had a grisly murder of a young gay man - beaten to death with an axe handle and his body burned. The men were convicted of Capital Murder and sentenced to life w/o. Could Moore's opinion be used to overturn either the conviction or sentence? It seems that Moore is close to paraphrasing Dred Scot: "A gay man has no rights that a straight man is bound to respect." At the very least, such opinions can fuel the flames of hatred that ultimately cause this type of violence. If there is no backlash against the opinion (as I fear) than I worry it will only encourage other Moore wannabes out there to run for the Supreme Court on this very platform - thus turning his concurring opinion into precedent setting law.

Moore's opinion is nothing but fuel for the Crits. It has nothing to do with law, and everything to do with his political ambitions. Once his term ends, he will most likely run for governor even if he has to go against an incumbent Republican. (He cares little about the Republican Party, but only about his religious mission.) His wife heads an organization opposed to rewriting our state constitution (something all major gubernatorial candidates have endorsed), claiming that our present one was based on Judeo-Christian values and shouldn't be touched. Our present Constitution was specifically designed to keep blacks and poor whites down. It has been all too effective, and those calling it ordained by God are truly scary.

I had thought, up until this decision, that Moore was relatively harmless and would basically stop with his silly little ten commandments monument in the middle of the courthouse and that would be enough to satisfy him and his megolomania. He actually ruled favorably on some issues of concern to me - he is not a knee jerk right winger protecting only the interests of big business. But this opinion was uncalled for. He could have just signed on to the majority opinion without comment and no one would have batted an eye.

I should finally add that from a legal perspective, the opinion is not appealable. That religious motivations play a part in a judge's decision is unavoidable - I don't see how the Lemon test can be applied to the Judge's decision. The decision may have biblical basis and motivation, but that is not enough to overrule it unless it has the primary effect of endorsing or forwarding the cause of religion. The entire legislation may be motivated by Exodus and the Ten Commandments to outlaw murder and perjury, but murder and perjury are not laws that primarily advance religion. In this case it has the primary effect of a mother not getting to have custody changed to her - something difficult to do in most circumstances anyways.

I guess I better be quiet now; I recall something in the disciplinary rules about not bringing down ill repute on the judiciary.

SLD (better not use my name, FromTheRight)

hezekiah jones

To many of us, Moore's close association with Christian Reconstructionists like D. James Kennedy might confer ill repute, but to Moore I would imagine it's a badge of honor.

ohwilleke

If Moore's opinion were the majority opinion (perhaps a 5-4 opinion in which the 4 were secular and reached a different result), I think it would have a good chance of flunking in the U.S. Supreme Court --- although I'm not sure that a direct appeal would be the right approach -- something in the species of an original action in the U.S. Supreme Court alleging a violation of due process as a consequence of appellate decision making not guided by the duly enacted statutes and constitutions of the United States being in violation of due process of law. Actually, the 2000 election case in the U.S. Supreme Court might be fairly good precedent for such an approach.

One imagines that the other judges of the Alabama Supreme Court are annoyed to no end by this little episode.

SLD

Interesting thought. Hmmm.

[ February 19, 2002: Message edited by: SLD ]</p>

fromtheright

Pope,
I do agree with Toto's point that Moore should not have cited Scripture in his decision. I am rather curious about his statement that the English common law is incorporated into Alabama law, would be curious about my friend SLD's perspective as a lawyer in Alabama (aye, understand, no name). While I disagree with basing his opinion on Scripture, I'm not so sure about his reliance on natural law, unless the positive law or case law is egregiously wrong. If his citations from Alabama statute and case law are correct I believe that Moore's opinion was sound enough without reliance on the Bible.
Okay, I guess I'm about to bring you atheists' wrath down on my head, but I agree with Moore that homo - uality (sorry, I'm trying to beat my Internet filter which ridiculously does not allow me type the word) per se makes one an unfit parent, though if the evidence of physical abuse by the father was stronger there should be some balancing of those threats, if in fact the child would not then be sent to state foster care. Personally, though, I don't respect Moore and see him as an opportunist with an eye, as SLD said, on the governorship, and voted against him for Chief Justice, even stooping to vote for, gasp, a Democrat.
ohwilleke, I suspect you're right, that the other justices are embarrassed.
I also happen to agree with Moore about the Ten Commandments in his courtroom in Etowah County, but his stunt at the Alabama Supreme Court was just pure pandering to the voters, as I suspect was also his Etowah County stance.

Edited to beat Cybersitter

[ February 19, 2002: Message edited by: fromtheright ]

[ February 19, 2002: Message edited by: fromtheright ]</p>

Toto

Except that the Supreme Court has limited the holding in Bush v. Gore to cases involving Bush and Gore.

SLD

</strong>

As I said before, he could've just concurred and no one would have given a damn. It has always been a strong burden of proof to take a child away from a custodial parent, and without very very strong evidence, appellate courts are not to overrule the trier of facts (in this case the trial judge). He did not need to say anything at all about the fitness of gays to be parents.


</strong>

I am shocked FTR!!! Utterly and completely shocked. Knowing you voted for a democrat, shucks I might actually have to reappraise my earlier opinion of you. Amazing!!

Now wait a minute, from a Constitutional perspective (establishment clause, i.e.) what's the difference between his Etowah County Courthouse display and the one in the Supreme Court building? Can't merely be because one is bigger than the other?

SLD

[ February 20, 2002: Message edited by: SLD ]</p>

ohwilleke

The English common law as of a particular year is expressly incorporated by statute into the common law of Colorado where it doesn't contradict existing Colorado law, and I wouldn't be surprised if the same was true in Alabama.

fromtheright

SLD,
You mean my last posting wasn't enough to bait you evil infidels, what with my blatant homophobia?
I'm not really upset about the Ten Commandments at the Supreme Court either, and I'm glad that Moore took the stand that he did in Etowah County, but he's still a cad. I think the difference for me is that I think the local stance was possibly from purer motives, though that's probably from a huge dose of naivete.