Originally appeared Feb. 27, 2002, in the Chicago Free Press.
Gay rights activists and national editorial writers are calling for Alabama's Chief Justice Roy Moore to be removed from the bench.
That's exactly what they should do. But in some ways, we are lucky that Justice Moore spoke up.
Two weeks ago, the Alabama Supreme Court ruled 9-0 that the heterosexual father of three teenagers (ages 15, 17 and 18) should be granted custody over their lesbian mother, who lives with her partner in California. The mother petitioned for custody in 2000, because the father, she said, was abusive.
Custody decisions are made for all sorts of reasons, including financial status and ability to care for a child. Eight of the justices, overturning a decision of an appellate court, seemed to have made their ruling based on legal principles. But Justice Moore made it clear in a concurring opinion that when he voted with the court, he wasn't just thinking about mundane legal details.
Instead, in his mind, custody was awarded to the father on moral principles - the mother, he believes, is an unfit parent simply because she is a lesbian. And he evidently felt the need to expound on this in detail, because his concurring opinion, which quotes the Bible and legal statutes, takes great pains to pronounce his views.
He writes, "... the homosexual conduct of a parent ... creates a strong presumption of unfitness that is alone sufficient justification for denying that parent custody of his or her own children or prohibiting the adoption of children of others."
He continues, "Homosexual conduct is, and has been, considered abhorrent, immoral, detestable, a crime against nature and a violation of the laws of nature. ... Such conduct violates both the criminal and civil laws of this State and is destructive to a basic building block of society - the family. ... [Such behavior] is an inherent evil against which children must be protected."
These are heartbreaking words, but we should be grateful that he said something this explicit about how he views gays and lesbians.
Yes, it is horrific that a state's Chief Justice would declare homosexuality to be "an inherent evil." Yes, it is unfortunate that his words are now entered into law as unbinding precedent.
But just think - he was on the bench a month ago, a year ago, and this was his position. He thought these things before - worse, he probably has acted on these things before, to the detriment of those in our community. The public just didn't know.
We could have guessed, perhaps. We already knew that Moore is no liberal. As a trial judge, he tried to keep a plaque of the Ten Commandments in his courtroom. Last year, when he became Chief Justice he made national news by placing monuments of Ten Commandments (AP called them "washing-machine sized") in the state judicial building.
But his words now give us something to point to. Even if he isn't ousted from the bench (and will he be, in conservative Alabama?) at least lawyers for gays and lesbians know what they are dealing with when they enter his courtroom. His homophobia is officially confirmed.
And the homophobes we know about are slightly less dangerous than the ones in hiding. Because it is not Moore, now, who is a wild card - it is the canny jurist who thinks that gays and lesbians are evil but is too savvy to say it; the jurist who denies a lesbian adoption rights because he thinks all lesbians are unfit parents, but couches his opinions in innocuous legal rigmarole; the jurist who sets low bail for a gay-basher because he secretly believes the victim got what he deserved.
After all, now we know how Moore thinks about gays and lesbians. We know that gays and lesbians can't get a fair trial in his courtroom. And the rest of the country knows that, too - which may mean that gays and lesbians who aren't given their full rights in the Supreme Court of Alabama may find refuge in the U.S. Supreme Court.
Also, his words give an edge to gay activists, who have something they can rally around that will help them raise funds and change minds as they battle homophobia in Alabama and elsewhere. Who can deny that homophobia still exists, when the chief justice of a state supreme court, who is supposed to be impartial, says that gays and lesbians are 'abhorrent, immoral, detestable, a crime against nature and a violation of the laws of nature'?
So yes, the words of Chief Justice Roy Moore are horrifying. But we knew that there were people in power who felt that way. It is no surprise to us.
We just don't always know exactly who they are. So let us call for his removal. But let us also be relieved that at least we know that the snake is there on the bench in Alabama, ready to bite. At least we can protect ourselves accordingly, the best we can.