The Controversy Over Alabama's Ten Commandments Statue, And the Nature of Justified Civil Disobedience

On Friday, August 23, Chief Justice Roy Moore was suspended from his position as a member of the Alabama Supreme Court (an office to which he had been elected). Moore thus seems to have lost his fight to keep a 5000-pound statue of the Ten Commandments in the rotunda of his courthouse.

Previously, a local federal district court judge had ordered Moore to remove the statue, on the ground that it violated the U.S. Constitution's First Amendment (and in particular, the Establishment Clause) by putting state imprimatur on a religious message. Justice Moore appealed, but the U.S. Court of Appeals for the Fifth Circuit and the United States Supreme Court both rejected his appeals.

Nevertheless, Moore decided to ignore the court order, and leave the statue where it was. But the other eight justices on Moore's bench (many of whom are Republicans) disagreed. So did Alabama's governor and Attorney General (both of whom are Republicans). Accordingly, Moore was suspended.

In interviews, Moore has argued that he is doing no less than what Dr. Martin Luther King did when he disobeyed police and ended up in jail in Birmingham in 1963. He has also remarked, "I believe you should obey higher courts except when that higher court is not going by the law."

If we take Justice Moore at his word that this principle - rather than, say, political advancement - is his reason for refusing to move the statue, then is he correct to make a parallel between himself and Dr. King? And if not, why not?

In this column, I will argue, however, that there is a big difference between Dr. Martin Luther King's saying that he thought that the segregationist laws of Alabama were "wrong," and the Chief Justice of Alabama's saying that the federal court's interpretation of the U.S. Constitution was wrong - for three main reasons.

The First Difference: The Order Does Not Single Out a Minority For Burdens

In his "Letter From the Birmingham County Jail," Dr. King set out a complete theory of civil disobedience. It defined when a law was so unjust that it could not be obeyed. It also stated what one's obligation was in the face of such a law.

In the face of such a law, Dr. King advocated, first, the use of all possible means of rational persuasion. As a last resort, but only a last resort, he said, nonviolent civil disobedience could ultimately be employed.

It seems unlikely that Justice Moore sees the First Amendment or its Establishment Clause as an "unjust law" - as opposed to a law that is being misinterpreted by the federal courts. But let's assume, for the purposes of argument, that Dr. King would have treated "unjust interpretations" as he did unjust laws.

Even so, Moore's action would not justify civil disobedience under Dr. King's test. No minority is being oppressed as a result of the removal of the statue.

Indeed, even if believers in the Ten Commandments were a minority in Alabama, they still would not be oppressed by the statue's removal. After all, the order did not mandate the statue's destruction; it made clear that the statue could constitutionally rest anywhere - and send out its religious message anywhere - but on government property such as the courthouse, where it violated the Establishment Clause.

The Second Difference: A Position of Power, Not Vulnerability

Dr. King also stressed in his "Letter From Birmingham Cty. Jail" that the decision to break the law could not be taken lightly. Being right was not enough: other conditions had to also be present.

For Dr. King, the situation for African-Americans who wished to challenge Jim Crow was intolerable. Not only were they effectively denied the vote (so that they could not vote to change the laws), they could not even organize and speak out to persuade others who could vote to change the laws.

For Justice Moore to claim that his position today is anything like that of Dr. King's in 1963, is incredible. Let's state the obvious: Justice Moore one of the most privileged people in Alabama today. Not only is he privileged by his race and gender, but he is the highest judge in the state. Nothing stops him or his supporters from pressing their point of view.

And yet, Justice Moore did not even attempt to rationally persuade his colleagues to accept the statue. Instead, he resorted to trickery and brought the colossal object into the building secretly at two in the morning. (Perhaps this is why none of his fellow justices voted to support him.)

Finally, in addition to these two importance differences, I believe the biggest difference between Justice Moore and Dr. King is that Justice Moore is a judge. I think that judges, unlike the rest of us, have a special obligation to obey the law, and to obey duly adjudicated interpretations of the law, with which they disagree.

After all, if they disagree, they can always resign their positions. But while they are in their jobs, they are duty-bound - and oath-bound - to enforce the law. Civil disobedience by the police is plainly a disturbing instance of sheer lawlessness; civil disobedience by judges, in my view, is much the same.

The Example of the Fugitive Slave Laws: Was Judicial Disobedience Merited?

Granted, there have been times when judges have been faced with truly unjust laws in this country. Some lawyers and scholars think that these judges should have used their power to nullify these laws. However, I am skeptical of this claim.

For example, consider the Fugitive Slave Laws, passed pursuant to the Constitution's Fugitive Slave Clause in 1793 and 1850, which required that runaway slaves be returned to the South. They were clearly legal - the Constitution authorized them. But they were also deeply immoral, just as slavery itself was.

Judges in Northern states, almost all of whom were abolitionists, were faced with a choice-- either enforce the laws, or ignore them. Some of the Northern judges tried to find a middle path for a while - using various technicalities to interpret the laws in such a way so as to allow the runaway slaves their freedom. But in the end, almost all compromised their personal morality, and upheld their oaths of judicial office - sending runaway slaves back to the South despite their belief that slavery, and thus the Fugitive Slave Laws, were terrible moral wrongs.

Though many would disagree, I think the judges who enforced the Fugitive Slave Laws did the right thing. Most basically, to refuse to enforce the law would have violated their duty and their oaths - but that is not the only reason I believe their choice was correct.

In addition, it is not clear that, by overtly rejecting the federal laws they found evil, that they would have helped very many slaves - and indeed, on the whole, more might have been hurt by the inevitable backlash. Congress, which was controlled by the slaveholding states, was always reading to pass new laws that were even more draconian when it came to slavery.

Ultimately, unilateral judicial rebellion in the North would have just inflamed the tensions between the North and the South - and led to the undemocratic result of a war begun by lawless, unelected judges. The Civil War may have been an inevitable necessity. But, in my view, it was not up to a handful of judges to decide when it should take place: That was a decision for the President to make.

Justice Moore's actions raise the interesting question of what a judge should do when his or her oath of office conflicts with the law or Constitution of the land. Not only antebellum American judges, but also judges in Nazi Germany and apartheid-era South Africa, have faced this issue.

The solution is not easy. Sometimes a judge can find ways to interpret the law in a way that conforms to both its language and one's morality. But if he or she cannot--if the law is clearly immoral--then the judge's only moral choice might be to resign and become a private citizen.

Indeed, if the judge feels strongly enough about the moral issue, he ought to feel compelled to openly advocate in favor of the position he feels is correct - something he likely could not do while still remaining a judge.

Then, the judge can ask him or herself the same questions Dr. King asked: Is this law unjust, and is it right to disobey it?

Imagine, for instance, that Justice Moore - now a private citizen - were, in the dead of night, to try to peaceably but disobediently sneak the Ten Commandments statue back to a position within the courthouse. He would be wrong to do so - both under the law, and under Dr. King's theory of civil disobedience. But at least he would no longer be using his office to break the law. Accordingly, he would deserve more respect for his civil disobedience, than is currently the case.