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Ten Commandments defiance doesn't meet civil disobedience test

By Anthony J. Sebok
FindLaw Columnist
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(FindLaw) -- On August 23, Chief Justice Roy Moore was suspended from his elected position as a member of the Alabama Supreme Court. Moore seems to have lost his fight to keep a 5,000-pound statue of the Ten Commandments in the rotunda of the state judicial building.

Previously, a 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. Moore appealed, but the 11th U.S. Circuit Court of Appeals and U.S. Supreme Court both rejected his appeals.


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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 -- and Alabama's Republican governor and attorney general disagreed. Accordingly, Moore was suspended.

In interviews, Moore has argued that he is doing no less than what the Rev. Martin Luther King Jr. did when he disobeyed police and ended up in jail in Birmingham, Alabama, in 1963. He also has 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 King? And if not, why not?

In this column, I will argue three main reasons that there is a big difference between King saying that he thought that the segregationist laws of Alabama were wrong and the chief justice of Alabama saying that the federal court's interpretation of the U.S. Constitution was wrong.

First: Order doesn't single out minority for burdens

In his "Letter From Birmingham Jail," 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 a person's obligation was in the face of such a law.

For King, an unjust law had to be one that imposed on a disenfranchised minority burdens from which the majority was exempted -- such as the Jim Crow laws. Thus, for King, civil disobedience was not to be used every time a court or police officer made a mistake, but only when those mistakes of law oppressed a disenfranchised minority.

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

It seems unlikely that 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 King would have treated "unjust interpretations" as he did unjust laws.

Even so, Moore's action would not justify civil disobedience under 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, except on government property such as the courthouse, where it violated the establishment clause.

Second: A position of power, not vulnerability

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

For 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 Moore to claim that his position today is anything like that of King's in 1963 is incredible. Let's state the obvious: Moore is 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 Moore did not even attempt to persuade his colleagues to accept the statue rationally. Instead, he resorted to trickery and brought the colossal object into the building secretly at 2 a.m. Perhaps this is why none of his fellow justices voted to support him.

Third: Moore's special status as a judge

Finally, in addition to these two important differences, I believe the biggest difference between Moore and King is that 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.

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. The laws were clearly legal. The Constitution authorized them. But they were also deeply immoral, just as slavery itself was.

Northern judges, 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 and used 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 and sent 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 duties and 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, they would have helped many slaves. Indeed, on the whole, more might have been hurt by the inevitable backlash. Congress, which was controlled by the slaveholding states, was always ready 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 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.

What should a judge do when the law conflicts with morality?

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 American judges in the antebellum era 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 that conform to both its language and his or her 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 judges feel strongly enough about moral issues, they ought to feel compelled openly to advocate in favor of the position they feel is correct -- something they likely could not do while remaining judges.

Then such as judge can ask the same questions King asked: Is this law unjust, and is it right to disobey it?

Imagine, for instance, that Moore, now a private citizen, were, in the dead of night, to try peaceably but disobediently to sneak the Ten Commandments statue back to a position within the state judicial building. He would be wrong to do so under the law and under 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.

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Anthony J. Sebok, a FindLaw columnist, is a professor of law at Brooklyn Law School, where he teaches torts and legal philosophy, among other subjects.

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