CIVIL DISOBEDIENCE?

Anthony J. Sebok, a Brooklyn Law School prof and FindLaw columnist, takes issue with Alabama Chief Justice Roy Moore’s claim that he is practicing civil disobedience in the grand tradition of Martin Luther King, Jr. Sebok disputes this, citing three tests that he has apparently made up:

First: Order doesn’t single out minority for burdens <...> 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.

Well, King was a disenfranchised minority. Clearly, Christians are a majority in the U.S. and overwhelmingly so in Alabama. But one could argue that the court order to remove the monument certainly disenfranchises that majority, since they voted for Moore almost exclusively because of his stand on the Commandments. So, why can’t a majority which has been thwarted by a minority protest?

Second: A position of power, not vulnerability <...> 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.

This is actually just the first argument restated more stupidly. First, for Moore and his supporters, not being able to acknowledge their religion in the public square is intolerable. And a federal court order is stopping Moore and his supporters from pressing their point of view. I disagree with their view, but they’re clearly facing rather serious opposition from a powerful authority.

Third: Moore’s special status as 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.

I agree with this. I don’t know what it has to do with whether Moore’s action constitutes civil disobedience, though.

Oddly, Sebok says Moore’s actions are analogous to the judges in the antebellum period who opposed the fugitive slave laws but nonetheless carried them out because their fealty to the law overrode their political passions. I’m sure Moore would proudly wear the mantle of the opposing camp on that one.

I don’t think Moore should have put the monument in the courthouse, think he should have obeyed the court orders, and think he’s a yahoo who has no business being Chief Justice. But he’s an elected official whose actions are overwhelmingly supported by his constituents. And, clearly, he’s engaged in civil disobedience.

FILED UNDER: Law and the Courts
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Ross Judson says:

    What if Moore had just placed a big cross in the courthouse? Is that OK? Is that different somehow than the ten commandments? They’re both pretty emblematic of Judeo-Christian religions.

    What if a majority of Alabamans support lighting the cross mentioned above on fire, while it’s in the middle of the courthouse? Is that still “civil disobedience”?

  2. Rick DeMent says:

    I would quarrel with you on the issue of disenfranchisement. Are the Christians in Alabama disenfranchised? Are they prevented from voting? Are they prevented from making the necessary changes in the law? Since the federal courts have ruled that the monument violates the establishment clause then the only avenue of remedy is the alteration of the constitution. Now you can argue that the jurisprudence that found the monument in volition is incorrect but then we are back to the same problem, the only avenue is to go to a higher court or work to change the constitution to specifically allow religious monuments on public grounds. They tried the higher court, SCOUTS didn’t have the stones to review the case, they lost.

    I think the issue with King is that they didn’t have the ability to change the law or the constitution or anything else. One of the principals of the constitution is to specifically protect the rights of minority voices. But there is still an avenue left for the people of Alabama so to say they are disenfranchised is not entirely true. But let’s say for the sake of argument that they are justified in their civil disobedience, what would they wish for the courts to do? Reverse the ruling based on the, “Well we didn’t know how much this meant to you” test? And if they did would that not mean that those who see a God and all the trappings of religious dogma as little more then fairy tales have an equal excuse to engage in counter civil disobedience?

    Do they not have the right to petition their representatives to present a bill to create the “Defense of religious paraphernalia on public grounds” amendment? A truly disenfranchised person would not have that avenue available to them, no?

    Personally I think the who thing is a tempest in a teapot but I can imagine the stink if a judge was elected and wanted to put the code of Hammurabi next to it.

  3. James Joyner says:

    Ross: I don’t disagree. But, yes, it’s civil disobedience if people feel the law is unjust and are therefore willing to face the consequences of breaking it.

    Rick: If you’re allowed to vote but the majority’s will gets overridden by judicial fiat, the practical effect is to have not been able to vote. In that way, the Fundamentalists are no different from the blacks of the 1960s. Blacks had the right to try to get Constitutional amendments passed, too.

    Ironically, had Moore “put the code of Hammurabi next to it,” he’d have been perfectly within the law.

  4. James Joyner says:

    And, again, I reiterate: Part of civil disobedience, indeed, a fundamental component, is the willingness to go to jail. The question is whether this will shame the society into changing the law.

    As much as I don’t want to see religious totems erected at the courthouse, I don’t think it’s worth putting people in jail to avoid.

  5. Rick DeMent says:

    James,

    If you’re allowed to vote but the majority’s will gets overridden by judicial fiat, the practical effect is to have not been able to vote.

    One mans judicial fiat is another mans protection against the tyranny of the majority.

    Ar you saying that black citizens of the civil rights era were on equal political footing as the contemporary Christian majority in Alabama. If yes do you predict that anyone attempting to block the removal of the monument will get the fire hose treatment?

    I’m just asking the question [grin]

  6. James Joyner says:

    Rick,

    In many ways, tyranny of the majority is preferable to tyranny of a minority. While I disagree with what Moore is doing and think he should be jailed for contempt of court, I’m much more sympathetic to that than judicial override of the federal nature of our system.

    Overall, of course the comparison of 1960s blacks and current Evangelicals doesn’t stand up. But civil disobedience can be more narrowly focused. Many Evangelicals would argue that they are indeed being oppressed because the society is denying what they think are fundamental rights endowed by their creator.

  7. Alex says:

    I agree that the first two points are essentially an arbitrary standard, but the third does cut to the heart of the matter. What Moore is doing isn’t a private or personal expression of faith that is discriminated against; nor could it be since he is free as are other Alabamans to express his faith as a private individual. It is a dereliction of duty in that he is acting as a government official who has sworn to uphold the Constitution and is now violating that oath.