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Swing Low, Alabma

The Return of Judge Roy Moore

by CHRISTOPHER BRAUCHLI

It’s hard to keep Alabama out of the news.  Two of its recent newsworthy events deserve attention.  The first is its attempt to improve on the Beason-Hammon Alabama Taxpayer and Citizen Protection Act, a 76-page statutory creation as remarkable for its length as for its content that was designed to rid the state of illegal immigrants.

As drafted, the Act prohibits anyone from giving an illegal immigrant a ride to church (or any other place for that matter).  In addition, illegal aliens may “not be permitted to enroll in or attend any public postsecondary education institution.” Both of those provisions, among some others, were blocked by a federal court whose decision is being appealed.   The proposed revisions slightly soften some of the harsher provisions.  Among those softened is the protocol to be followed when a law enforcement officer stops someone.  Whereas the original legislation required a law enforcement officer to determine the immigration status of anyone stopped by the law enforcement officer for any reason, the determination is now only required if a person is “lawfully arrested or is issued a traffic citation. . . .” Mysteriously, the amendment adds a provision that says when an arrest or citation is issued to the driver, the officer may also inquire as to the citizenship of everyone else in the car even though none of them has been issued a citation or been arrested.  Someone smarter than I can explain the logic of that.

Another change is to the provision that requires that schools determine the citizenship status of all children when they enroll.  As originally enacted, that determination was not satisfied by asking the children on the first day of school to raise their hands if they were illegal immigrants.  The law required proof of the child’s status together with detailed provisions.  All those will be replaced by a requirement that the Alabama State Department of Education “compile a report that calculates the estimated annual fiscal impact of providing free public educational services to those Alabama public school students who are the children of, or in the custody and control of, aliens believed to be unlawfully present in the United States.”   A student of the legislation could be forgiven for failing to understand how the State Department of Education can figure out the “annual fiscal impact to the state” of educating illegal immigrants without finding out who is and is not an illegal immigrant.  Lest the illegal aliens become nervous, however, the legislation tells them they need not be.  It specifically says that:  “Under no circumstance does the Legislature intend to deny anyone the opportunity to receive a free public education in Alabama’s public educational system.  Nor does the Legislature intend for the provisions of this section to discourage anyone from accessing a free public education in Alabama’s public educational system.”  There are a number of other changes made but since the Bill is now 83 pages long those who want more information should read it for themselves.  The other event of significance is the return to the judicial scene in Alabama of Roy Moore.  Roy is the former Chief Justice of the Alabama Supreme Court.

Roy first gained notoriety  in 1997 when he was a state circuit court judge.  In his courtroom he hung a hand-carved wooden plaque of the Ten Commandments because, one assumes, he could not remember what they said without prompting from the plaque.  He refused a higher court’s order to remove the plaque and then-Governor, Fob James, said he would call out the national guard, if necessary, to prevent the removal of the plaque.  The plaque remained.   In 2001, Judge Moore was elected Chief Justice of the Alabama Supreme Court.  Within 6 months of his election he supervised the construction and installation of a 5,280-pound granite monument to the Ten Commandments in the central rotunda of the State Judicial Building.  The 11th Circuit Court of Appeals upheld a lower court ruling ordering removal of the monument.  When Chief Justice Moore  refused, the Alabama Court of the Judiciary removed him.  The monument left the rotunda and was placed in a back room. That was in 2003.

The news from Alabama in March that accompanies revisions to the immigration bill is that unless the unexpected happens, Roy will soon once again be the Chief Justice of the Alabama Supreme Court, having won the Republican primary in that state.  Jurisprudence in Alabama has lots to look forward to.  During his prior tenure he wrote a concurring Alabama Supreme Court opinion in a custody battle involving a lesbian mother in which he said that homosexuality is “abhorrent, immoral, detestable, a crime against nature and a violation of the laws of nature and of nature’s God. ” Homosexuals in Alabama were “presumptively unfit to have custody of minor children.”

It is too soon to say whether or not Roy will be elected.  His opponent is Harry Lyon, a criminal defense lawyer who has reportedly unsuccessfully  run for office 10 times.  He is also said to have once publicly joked that illegal immigrants should be publicly executed.  Were that to become Alabama law the Beason Hammon Act would be superfluous. Whichever candidate becomes the new Chief Justice Alabamans won’t have much to brag about.

Christopher Brauchli can be emailed at brauchli.56@post.harvard.edu.