Roy Moore Is (Still) Constitutionally Illiterate

A lesson in how to ensure you lose a case in court.

Readers may remember failed Republican Senate candidate Roy Moore, the former Chief Justice of the Alabama Supreme Court who was twice removed from the bench for failing to comply with federal court orders. When Moore ran for Senate, I wrote a piece for The Weekly Standard (now available on the Washington Examiner website) detailing Moore's failure to understand much about our constitutional system. In the years that have passed, it is not clear his understanding has improved.

Moore may no longer be a justice, but he continues to file cases and represent clients. He recently represented the First Apostolic Church of East Baton Rouge Parish in the U.S. Court of Appeals for the Fifth Circuit and it did not go well.

The church and its pastor, Mark Anthony Spell, objected to COVID-19 orders that prevented churches and other places of worship from holding in-person services during the early stages of the pandemic. They filed suit, but rather than argue that the state's stay-at-home orders were unconstitutonal insofar as they barred church services while allowing other businesses or institutions to remain open, Moore insisted on arguing that the Constitution bars any governmental order respecting a church's operation. According to Moore, church assembly is categorically "beyond the jurisdiction of the government."

Moore stuck to this position even when pressed at oral argument (as noted by Raffi Melkonian). The judges on the panel tried to suggest that the church should press other arguments, such as that it is unconstitutional to treat church assembly less favorably than other forms of assembly or to otherwise impose special burdens on religious exercise, but Moore would not relent. According to Moore, the only argument upon which they could prevail was that "separation of church and state means there's no jurisdictional position that the state can take where they can restrict church assembly."

As you might expect, this did not go well, and the Fifth Circuit panel (consisting of Judges Richman, Elrod and Oldham) ruled unanimously against the church in an unpublished per curiam opinion. Citing extensively from the oral argument transcript, the court explained that the church and its pastor, as represented by Moore, insisted on pressing a fruitless argument. Wrote the court:

Pastor Spell is the master of his case, and he cannot prevail on the theory he advances. Controlling precedent directly contradicts Pastor Spell's jurisdictional theory of the Religion Clauses.

Moore may have once been a state court justice, but it's clear he still has much to learn about the law.

(Hat tip: Advisory Opinions)