Bias on the Bench?
Laurie A. Lattimore May/June 1997Though Scripture condemns homosexual behavior, what happens when a judge in the courtroom does the same? That's the struggle confronting Judge Roy Moore of Alabama, who insists that because God prohibits gay and lesbian relationships, so will he. And though few would argue against the judge's right to hold his religious views, many would argue - including an Alabama appeals court - that he has no right to apply those views to cases he decides.
The problem for the Etowah County judge began with a nasty custody battle between Suzanne Scott Borden and her ex-husband, James Christopher Borden, over their two daughters. Typically a routine legal exercise, this battle was complicated when Mrs. Borden admitted to a lesbian affair.
"The court strongly feels that the minor children will be detrimentally affected by the present lifestyle of [Mrs. Borden], who has engaged in a homosexual relationship during her marriage forbidden both by the state of Alabama and the laws of nature," said Judge Moore, who publicly expresses his agreement with an Alabama law banning anal and oral sex - known as the state sodomy law - which renders homosexuality illegal. Thus, in a temporary ruling in January 1996, Moore granted custody to James Borden, and he ordered Suzanne to pay $126 a month in child support. Moore also gave James the house.
After three failed attempts to ask Judge Moore to dismiss himself from the case because of personal bias, Mrs. Borden and her American Civil Liberties Union lawyer Janice Hart appealed to the Alabama Court of Civil Appeals. A three-judge panel for the court - agreeing in November that Moore had no business hearing a case in which they believe the Etowah judge is clearly prejudiced - removed him from the case.
But Judge Moore - convinced he's being discriminated against for religious beliefs - is taking the civil appeals court decision to the Alabama Supreme Court.
"Basically the plaintiffs want a judge who will call it something different than what it is," Moore said of the homosexuality factor prior to his dismissal.
To the judge, removal from the case is discrimination; to Suzanne Borden and her lawyer, it was a legal necessity, because custody of her children is severely hampered by a judge who has boldly acknowledged he's against homosexuality.
The removal of Judge Moore brings up issues that go far beyond state laws and a custody battle. It revives a debate over what happens when a judge's personal values become a major factor in the interpretation and administration of laws. How much is appropriate, and at what point religious discrimination enters, are at the center of a silent debate in legal theory.
The problem isn't just Judge Moore's. In 1996 Journal: The Lawyers Magazine ran an article about the conflict religious judges can sometimes face in the courtroom and the potential conflict over bias. In one case, dealing with a teenager who wanted an abortion without her parents' permission, Judge Thomas J. Eggleston (once a candidate for the priesthood) disqualified himself.
"In fairness to the process and to my own conscience," Eggleston said, "the better thing to do was to admit that I couldn't be impartial."
The ACLU wishes Judge Moore would have admitted and done the same in the Borden case.
"His perspective is so skewed that he places his duty to God above what the law says," argued Hart.
The law Hart refers to is the Canons of Judicial Ethics, which governs the ethics and responsibilities of state judges. Hart and Borden claim - and the civil appeals court agreed - that Moore has violated canons 2, 3A(6), and 3C(1)(a). Canon 2 says a judge "should avoid impropriety and the appearance of impropriety in all his activities." The canon explains that judges must promote public confidence in their ability to try the case without bias. Canon 3A(6) prohibits judges from publicly commenting about a pending case. But the most important violation in their eyes is 3C, which asks judges to disqualify themselves from a case if they have a "personal bias" toward the issues. In fact, the first judge assigned to the Borden case more than a year ago dismissed himself because he was a neighbor of the Bordens and felt that was enough of a bias to prevent him from overseeing a fair trial.
"We can't say judges can never use their values," said Hart, "but what we can say is that where moral questions are in a state of flux, like with gay and lesbian issues, judges should leave their religious judgments out of those issues and just look at the facts." And the facts, she and Borden contend, are that the children are not being physically harmed in any way and belong with their mother.
The judge, in contrast, argued that he ruled as he did because he believes Susan's lesbian affair is harmful to the children and ultimately to God's plan for a family. Homosexuality, he stressed, is a sin according to God, but more immediately according to the state of Alabama.
Stuart J. Roth, representing Moore on behalf of the American Center for Law and Justice in Alabama, argues that Moore's religious convictions are not as relevant in this case as the fact that Suzanne Borden's physical relationship with another woman is against state law.
"In Alabama homosexuality is wrong," Roth said, adding that if one party in a divorce trial had used drugs, the judge would be remiss not to consider the lawbreaking activity of the parent when deciding custody. "Whether a judge is a Christian or a Jew or a Muslim or an atheist, breaking the law is a factor."
Roth and Moore contend that if the plaintiffs are worried about the homosexuality issue, they should attack the state legislature and fight to change the law, not go after the judge.
"The fact that Moore's personal beliefs agree with the law does not keep him off the case," Roth said. "They have to prove he has a personal bias, which we don't believe he does."
Hart believes Moore's bias stems not so much from his judicial record, as from his outspoken and public stand for God and what they consider to be the judge's continual blurring of the line between church and state.
"My first thought when I found out Judge Moore was going to be on this case was 'Oh, no, that's the judge who made me pray in court,'" Hart said. (Moore recently made national news for hanging the Ten Commandments in his Etowah County courtroom and conducting prayers before jury selection [see page 4]). Hart and Borden believe these kinds of religious stands show that Judge Moore's faith comes before his duty as a judge. They fear he will focus only on the fact that Borden has admitted to a lesbian affair and not consider other factors.
"That issue should not be the sole factor," Hart said, declining to comment specifically on the case and other factors that would be relevant for the custody fight.
Roth and Moore argue that such fear by the plaintiffs proves that the judge is being singled out because of his outspoken Christianity. Otherwise the fact that Borden violated the state's sodomy law would be the issue, not the judge's potential lack of impartiality.
"We live in a secular, humanistic country in which it is politically correct to deny people of faith a voice while allowing the secular, humanistic message to go on," Roth said, noting that where a biblically based viewpoint is espoused, people scatter. "We are being singled out. Anyone who sits on the bench comes with values regardless of background. A judge takes an oath to be impartial. The people elected Judge Moore because he is ethical and moral. "The irony is that he is being thrown off the case for the same reason that got him elected . . . he's a Christian."
Duane Benton, a justice on the Missouri Supreme Court, maintains that there are very few times a judge has the opportunity to exercise personal beliefs. Judges generally are asked to consider whether legislative directives or constitutional amendments are appropriately applied to the facts in individual cases. Judges often have an opinion, but they are bound by the Constitution or the legislature to follow a certain direction.
"Once you accept the premise that we must be free from bias and prejudice, there is not a lot of room for ad hoc policy," said Benton, a member of a Baptist church in Jefferson City, Missouri. Benton explains there are occasional cases, however, such as divorce and custody battles, in which a judge has more room for his own discretion. To determine how much is proper for personal values to influence a decision, said Benton, "is not easy."
Harold See, a newly elected Supreme Court justice in Alabama who is on the panel to hear Judge Moore's plea, recognized that society is unusually afraid to acknowledge someone's religious convictions.
"When someone is seen as holding a belief very strongly, people become very cautious and concerned that those beliefs will be imposed on all," said See, a member of a Baptist church in Tuscaloosa and at one time a member of Moore's legal counsel in Judge Moore's famous fight over the Ten Commandments. "And people are even more cautious when it comes to religious values."
For Hart and her client, those religious values are the crux of the matter; for Roth and Moore, those values aren't even relevant.
"If there were no law against homosexuality, I think it would be a different case," Roth said, adding that he still believes that the Supreme Court would find Moore to be impartial and able to try a fair case. "But the fact is that the state doesn't believe in homosexuality."
But Hart and her client continue to skirt the bounds placed by the sodomy law and focus on what they consider a clear bias in their custody battle.
"Basically Judge Moore has said that his duty to uphold the law is subservient to his God," Hart said. And that factor, she claims, makes him unfit to hear her client's case.
"There are legal and ethical boundaries," said the Journal article, "as well as social norms that govern the extent to which judges can make religion an issue -- that is, talk about it, cite it in opinions, use it as guidance in decision-making. . . ."
Ultimately, a higher court (though certainly not the highest) will have to decide whether Judge Moore has stepped out of those boundaries.