Lambda's Ethical Misconduct Complaint Against Chief Justice Roy Moore

February 20, 2002

Judicial Inquiry Commission
P.O. Box 303400
Montgomery, AL 36130-3400

RE: Ethical Misconduct Complaint Against Chief Justice Roy Moore

To Whom It May Concern:

Lambda Legal Defense and Education Fund, Inc., an organization that has represented lesbian and gay parents and other litigants in Alabama’s courts in the past, and will continue to do so in the future, hereby files this ethical complaint against Chief Justice Roy Moore of the Supreme Court of Alabama. Having carefully reviewed Chief Justice Moore’s concurring opinion in Ex parte H.H., 2002 Ala. LEXIS 44 (February 15, 2002), it is clear that Chief Justice Moore has not carried out his duties in compliance with Canons 1, 2, and 3 of the Canons of Judicial Ethics of the Code of Alabama.

Canon 3 of the Canons of Judicial Ethics provides: “A judge should perform the duties of his office impartially and diligently.” The official Commentary to Canon 3 states that “personal bias or prejudice concerning a party” disqualifies a judge. Chief Justice Moore’s concurring opinion in Ex parte H.H. demonstrates that he harbors bias and fixed attitudes toward a significant segment of Alabama citizenry (i.e. gay men and lesbians) and that he cannot set aside his personal prejudices and religious beliefs to impartially and diligently decide each case on a case-by-case, evidentiary basis.

Indeed, Chief Justice Moore criticized the Court of Civil Appeals for doing its job in examining, under the correct appellate standard, the record evidence relating to homosexuality in Ex parte H.H. Chief Justice Moore wrote, “In this case, the Court of Appeals stated that ‘no evidence indicated that the mother’s homosexual relationship . . . would have a detrimental effect on the well-being of the children.’” In keeping with this conclusion, the full Supreme Court’s opinion in the case relies on other record issues, not homosexuality, as the basis for reinstating the trial court’s ruling in favor of the father. Disputing this evidence-based approach, Chief Justice Moore declared that “Courts must make decisions based on fixed principles. Judges should not make decisions based on the latest psychological or sociological study . . . .” Chief Justice Moore made clear that he will not open his judicial mind to scientific study and evidence, but will instead always find that “the [homosexual] lifestyle should never be tolerated” and that homosexuality “alone would render [a man] or [a woman] an unfit parent.”

Chief Justice Moore’s opinion describes the lives of gay and lesbian people as “abhorrent,” “immoral,” “detestable,” an “inherent evil,” and “an intolerable evil.” He condemns homosexuality as “so heinous that it defies one’s ability to describe it.” He finds the “consequences [of it] inherently destructive to the natural order of society.” Relying on ancient sources of criminal law, rather than current knowledge about lesbian and gay parents and their children, he emphasizes that, in his mind, any person in a lesbian or gay relationship is unfit to have custody. That unyielding position is contrary to the case-by-case approach of Alabama family law and shows Chief Justice Moore’s disregard for the requirements of his judicial office. As the Commentary to Canon 3 explains, “[a] judge should accord to every person who is legally interested in a proceeding, or his lawyer, [the] full right to be heard according to law . . . .” Chief Justice Moore, however, has made it plain that he will not countenance a full hearing, based on real evidence, for lesbian and gay parents.

Moreover, Chief Justice Moore’s concurring opinion demonstrates that he believes it appropriate to invoke religious doctrine as a basis for issuing legal decisions. Citing “direct revelation found in the Holy Scriptures,” Chief Justice Moore’s concurring opinion declares that homosexuality “violates both natural and revealed law.” He further explains:

The author of Genesis writes: `God created man in His own image, in the image of God He created him; male and female He created them.... For this reason a man shall leave his father and his mother, and be joined to his wife; and they shall become one flesh.’ Genesis 1:27, 2:24 (King James). The law of the Old Testament enforced this distinction between the genders by stating that `if a man lies with a male as he lies with a woman, both of them have committed an abomination.’ Leviticus 20:33 (King James)

While Chief Justice Moore is entitled to his personal religious beliefs, his invocation of religious beliefs as a basis for legal decisionmaking is clearly improper. Impartiality in each case requires that a judge set aside personal biases and beliefs, religious or otherwise. Chief Justice Moore has demonstrated that he is unable, or unwilling, to do so.

While Canon 3 is a sufficient basis to determine Chief Justice Moore has violated his obligations as a judicial officer, it does not stand alone. Canon 1 provides: “A judge should uphold the integrity and independence of the judiciary.” The integrity of the judiciary is compromised when a judge so manifestly casts aside any pretense of open-mindedness and impartiality, and instead invokes “fixed principles” that are contrary to the evidence before the court and that are based on religious beliefs.

In addition, Canon 2 provides: “A judge should avoid impropriety and the appearance of impropriety in all his activities. A. A judge should respect and comply with the law and should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” Chief Justice Moore has done just the opposite. He has brought embarrassment to the Supreme Court of Alabama by demonstrating that he is unable or unwilling to constrain the discharge of his judicial duties to the evidence before him and the rule of law, not religion or bias.

For all of these reasons, Lambda Legal Defense and Education Fund, Inc. files this complaint to ensure that all litigants in Alabama can be confident that they will have their fair day in court. We respectfully request that the Commission fully investigate this complaint and take all appropriate action.

Very truly yours,

Ruth E. Harlow
Legal Director

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