Insight on the News
  Against Civil Disobedience

An article disagreeing with the actions of Alabama Supreme Court Chief Justice Roy Moore’s refusal to remove a display of the Ten Commandments from the Judicial Building in Montgomery after being ordered to do so by a federal court. Moore believed that the court order was unconstitutional.

Q: Should more conservative officeholders defy outrageous edicts of federal courts? NO: The rule of law obliges officials to comply or resign for reasons of conscience.

by Richard Land

As we have seen in the Ten Commandments/Judge Roy Moore controversy in Alabama, determining which extreme circumstances morally would justify defiance of a court’s authority generates great controversy even among conservative Americans who agree on a wide range of other issues. The federal judiciary has bombarded the American people in the last few decades with so many “outrageous” decisions that they have precipitated a crisis by causing millions of U.S. citizens to question not only the correctness of their rulings, but the legitimacy of their authority.

As a Christian and as a conservative I, too, am righteously indignant at the federal courts’ attempts to deny our Judeo-Christian heritage and to enforce a rigid and artificial secular bias on our public spaces. I am as angered as anyone by the declaration of the 9th U.S. Circuit Court of Appeals that the Pledge of Allegiance is unconstitutional because it contains the phrase “under God.”

I, too, am angered when courts uphold teachers presenting classes on Islam to encourage tolerance but deny student-initiated, student-led, student-content-dictated prayer before high-school sporting events simply because the government paid for the public-address system (Santa Fe Independent School District v. Doe).

I, too, am angered when courts rule that competitively won, publicly funded scholarships can be used by students to major in anything but religious studies.

The 11th U.S. Circuit Court of Appeals’ outrageous decision that Moore did not have the right to display the Ten Commandments in the Alabama Supreme Court rotunda is the poster-child example for an out-of-control federal judiciary that blatantly is discriminating against religion and religious expression.

I have and will continue vigorously to protest such hostile and unconstitutional court rulings. I have and will continue to do everything I can to encourage evangelical Christians and others to rise up and reform this government and its courts.

The Ten Commandments/Judge Moore case does focus attention on several issues of controversy concerning the issue of if, and when, to defy court orders. Moore has argued that the federal court order to remove the Ten Commandments display was unconstitutional, that he had to obey a higher law than the federal court and that he had a moral duty to disobey or defy it.

Actually, Moore has made two different arguments that need to be addressed. First, he has asserted that the federal appeals court did not have the constitutional authority to order him to remove the Ten Commandments display because it said he was violating the First Amendment’s “establishment clause,” and the First Amendment does not apply to state government, only to Congress. This is an argument that has been made before and is an intriguing legal theory, but it has been rejected by federal courts, including the Supreme Court, for about a century.

The Supreme Court has been ruling for at least that long that the “equal-protection” clause of the Constitution’s 14th Amendment (ratified in 1868) applies all the Bill of Rights prohibitions against federal-government action to state and local governments as well. Moore and others may disagree, but the institution given the authority to adjudicate the issue, the Supreme Court, has ruled for numerous decades that the First Amendment must apply to state and local governments.

Attorneys consistently are winning free-exercise-of-religion cases against state governments and county zoning commissions by going into federal court and arguing that the First Amendment’s protection against government “prohibiting the free exercise” of religion applies not just to Congress, but to government at all levels. If the Supreme Court were to reverse itself and agree with Moore that the First Amendment applies only to Congress, Christians and other people of faith would be at the mercy of zoning commissions telling them they could not have Bible studies above a certain size in their own homes (a Connecticut case) or how many worship services and what maximum attendance would be allowed to ease traffic concerns (a case in the Pacific Northwest).

Moore’s second argument, that he had an obligation to obey a higher law and acknowledge God through his Ten Commandments display, even when a federal court however misguided has ruled otherwise, deals directly with the issue of when it is justifiable to defy court orders.

Jesus said we are to “Render therefore unto Caesar the things which are Caesar’s; and unto God the things that are God’s” (Matthew 22:21). The Apostle Paul enjoined every person to “be subject unto the higher powers. For there is no power but of God: the powers that be are ordained of God” (Romans 13:1). The Apostle Peter calls us to “Submit [our]selves to every ordinance of man for the Lord’s sake” (I Peter 2:13). Is nonviolent civil disobedience ever acceptable? Yes it is, in extreme circumstances, if God is to remain sovereign. Francis Schaeffer put it succinctly in A Christian Manifesto (1981): “One either confesses that God is the final authority, or one confesses that Caesar is Lord.”

Yes, there may well come a time when legal redress of grievance has been exhausted that individual Christians may feel compelled by conscience to disobey unjust laws through nonviolent civil disobedience, obey God rather than man and willingly face the legal consequences for such nonviolent protests. Two excellent examples in Alabama’s history are Dr. Martin Luther King Jr. and Rosa Parks. King was arrested for protesting segregation laws in Birmingham and Parks for refusing to give up her seat on a segregated bus in Montgomery.

There are some who have compared Moore’s action with those of King and Parks. However, there are two critically important differences. First, King and Parks were part of a disenfranchised class of African-Americans that systematically was prohibited from voting in the Alabama of the 1950s and the early 1960s. The threshold for civil disobedience is lowered substantially when you are denied the right to legal redress of grievance through the ballot. Moore not only can vote, he is the highest elected judicial official in the Alabama state government and was far from having exhausted his legal appeal process through the courts.

Second, Moore is not a private citizen like King and Parks. When a government official defies a court order with which he disagrees, you are dealing with a very different challenge to the rule of law than when an individual engages in nonviolent civil disobedience. When a government official takes it upon himself to decide which legal authority he is going to acknowledge and which he isn’t, then you have a direct challenge, not of a law but of the rule of law.

The United States is a government founded on the rule of law, not of men. If we disagree with a judicial interpretation of the law (which makes it the legal authority until it is reversed, or the law is changed) then we must change the judges and, if necessary, change the laws.

What we must not do, unless we want to abandon the rule of law and take a huge step toward anarchy and rebellion, is support defiance of legal authority by officials sworn to uphold the law.

As an elected official, Moore should have, like his eight fellow justices, and Alabama’s governor and attorney general, obeyed the federal court order under protest, continued the appeals process and made his compelling case for the right to display the Ten Commandments in the courts and in the courtroom of public opinion. I will continue to help him make that case.

If Moore felt that his conscience would not allow him to comply with the federal court order, even pending appeal, then he should have resigned his office and continued to make his case. As chief justice, his refusal to comply caused the state of Alabama, not Moore personally, to be in defiance of federal authority.

If, as a private citizen, Moore felt compelled by conscience to protest the removal of the Ten Commandments display by engaging in a nonviolent sit-in at the Alabama Supreme Court building, I would respect his freedom of conscience. If he were arrested, I would contribute to his legal-defense fund. If he penned a “Letter from the Montgomery Jail,” I would help him publicize his case.

What we should not support, however, is a right for government officials to decide for themselves which authority they will recognize and which they will not. That weakens the commitment to the rule of law that is one of the great foundations of this republic. Widespread support for such a concept quickly would lead to anarchy.

A conversation I had recently illustrates this point. I asked the pastor who defended Moore for obeying a “higher law” by defying the court order, “Brother, are you really saying that the sheriff in your county should have the right to decide which laws he is going to enforce and which laws he isn’t? Let us suppose your sheriff said ‘I believe that every woman has a God-given right to choose whether to abort her baby or not, so I am simply not going to enforce any regulations against abortion in my jurisdiction, whatever the law may say.’”

The pastor replied, “Well, he wouldn’t be appealing to God’s higher law.”

I replied that God’s higher law can become awfully subjective, especially for non-Christians, and if we allow officials to have a private interpretation of which laws to enforce, we rapidly will collapse into anarchy everyone will do that which is right in their own eyes.

To challenge the rule of law, especially as an official of the state, is to play with a fire that can consume the principle upon which an entire governmental system is based the rule of law. I want to reform this government, not consume or destroy it.

We must only engage in the civil disobedience of defying court orders as private citizens as a last resort and as a matter of conscience. We should not support government officials defying duly constituted authority because to do so is to threaten the rule of all law, not just unjust law.

Land is president of the 16.2 million-member Southern Baptist Convention’s Ethics & Religious Liberty Commission. A Princeton and Oxford graduate, he also hosts two nationally syndicated radio programs, For Faith & Family and Richard Land Live!