When Carlos E. Moore became a part-time municipal judge in Clarksdale, Miss., his first order of business was to remove the state flag from his courtroom.
The banner, adopted in 1894 and retained by Mississippi voters in a 2001 referendum, features the Confederate battle flag in its upper left corner and has been a continuing source of controversy, especially for African Americans such as Moore.
“That flag — I do not believe it stands for justice,” the 40-year-old lawyer said in an interview last week. “I did not want it standing behind me as I tried to administer justice.”
In fact, Moore would like to eliminate the flag all together. He has ignored death threats and asked the Supreme Court to intervene in what so far has been an unsuccessful federal lawsuit claiming the flag promotes white supremacy and violates the equal-protection rights of black Mississippians.
It seems it would be a substantial lift to ask the Supreme Court to tell a state it cannot fly the flag it favors. Even Moore’s lawyer, Philadelphia attorney Michael T. Scott, acknowledges there is no reason to think the court is particularly anxious to join the national debate over what should be done about the nation’s lingering memorials to the Confederate States of America.
The state of Mississippi did not bother to file a response to Moore’s Supreme Court petition. But the court last month told the state it wanted to know more, and to file a brief.
“So at least somebody at the Supreme Court does not think it is frivolous,” Moore said.
Moore’s petition to the court says that the “message in Mississippi’s flag has always been one of racial hostility and insult.” It encourages violence, Moore alleges, and sends a “message to African-American citizens of Mississippi that they are second-class citizens.”
It seemed he had caught a break when his lawsuit was randomly assigned to U.S. District Judge Carlton Reeves.
Reeves, nominated by President Barack Obama, is only the second African American federal judge in Mississippi and already has made a name for himself.
He struck down the state’s law forbidding same-sex couples to marry, one of several rulings around the country that preceded the Supreme Court’s decision in 2015 that such prohibitions violate the Constitution.
And Reeves became something of an Internet sensation in 2015 when he delivered an eloquent speech on racial animosity and his state's tragic past when sentencing three young white men who had killed an African American.
“The simple fact is that what turned these children into criminal defendants was their joint decision to act on racial hatred,” he said, in a long speech whose transcript went viral.
In Moore’s case, Reeves resurrected some of those themes.
He devoted about half of his 32-page decision to what he called “historical context” and dismissed the idea that the Confederate battle flag celebrates heritage, not hate, as supporters often declare.
“It should go without saying that the emblem has been used time and time again in the Deep South, especially in Mississippi, to express opposition to racial equality,” Reeves wrote. “Persons who have engaged in racial oppression have draped themselves in that banner while carrying out their mission to intimidate or do harm.”
He added, “It is difficult to imagine how a symbol borne of the South’s intention to maintain slavery can unite Mississippians in the 21st century.”
Still, Reeves wrote, Moore must lose.
To bring a federal lawsuit, a plaintiff must show an actual or imminent injury, specific and concrete to that person.
“Moore needs to identify that part of the Constitution which guarantees a legal right to be free from anxiety at state displays of historical racism,” Reeves wrote. “There is none.”
Scott, a corporate lawyer who normally represents pharmaceutical companies but had been looking to be involved in a case involving government endorsement of the Confederate flag, offered Moore help at the appellate level. Moore’s case next moved to the U.S. Court of Appeals for the 5th Circuit, considered one of the nation’s most conservative.
But again, Moore seemed to luck out. His randomly assigned three-judge panel comprised a George H.W. Bush nominee and two judges nominated to the court by Obama, one of them African American.
“I’ve got to admit, when I saw that panel, I wasn’t unhappy,” said Scott. “When I saw the opinion, I was.”
The judges were unanimous in affirming Reeves’s ruling. The Equal Protection Clause demanded a showing of government action that hurts an individual, Judge Stephen A. Higginson wrote.
“The gravamen of an equal protection claim is differential governmental treatment, not differential governmental messaging,” he wrote.
Scott’s petition to the Supreme Court asks the justices to look at it this way: If the Constitution’s Establishment Clause means that a state may not favor one religion over another, its Equal Protection Clause should be read to prohibit a state “from expressing the view that one race is superior to, or preferred over, another.”
Under the 5th Circuit’s decision, Scott tells the court: “A city could adopt ‘White Supremacy Forever’ as its official motto . . . or a state could incorporate a Nazi swastika, as an endorsement of Aryan/white supremacy, in its state flag. So long as the government’s race-based message was ‘limited’ to speech, without further proof of a more tangible denial of ‘equal treatment,’ it would be immune from attack under the Equal Protection Clause.”
Moore acknowledges that the best way to accomplish his goal would be for Mississippi’s elected officials to change the flag. After white supremacist Dylann Roof killed nine people in the Charleston, S.C., church massacre, Confederate flags came down across the South.
But Mississippi remains the only state to incorporate the battle flag in its official emblem, and Moore said legislative efforts to change it have foundered. He sees no reason to believe that will change.
The final straw that led to his suit, he said, came in February 2016, a month traditionally celebrated as African American History Month. It was then that Mississippi Gov. Phil Bryant (R) announced that April would be Confederate Heritage Month.