Thursday, February 19, 2004
Every shepherd is an abomination
Sullivan was convinced to concede this point by a reader who wrote that:
Public officials such as Newsom and Moore do not have the LEGAL DISCRETION to act as they have done in their respective cases. Moore ultimately was thrown out of office after he defied the Federal court's order, but he was only cited for contempt of court after he had already persistently violated his oath of office as a public official. And he was roundly condemned across this state and across the country for his actions long before the contempt order was issued by Judge Thompson. Again, if public officials have the privilege of being able to disregard the CLEAR mandates of the law in executing the law, then there is no law at all, just arbitrariness.
Civil disobedience relies upon private citizens forcing public officials to enforce unfair or immoral laws, even when the officials in good conscience would prefer not to do so. By doing this, it points out the immorality or unfairness of the laws in question.
The proper way for Newsom and others to have made a symbolic showing on this issue while conforming to the law would have been for thousands of gay/lesbian applicants to have appeared day after day at his office seeking marriage licenses, and for him to have publicly and reluctantly denied their individual requests. [link]
This argument involves a misunderstanding of the justifications for and workings of civil disobedience. The middle paragraph is the key. There it is admitted that the point of civil disobedience is to confront public officials with unjust laws. The author seems to think, however, that the officials are nevertheless supposed to enforce the laws. This is civil disobedience as street theater.
But civil disobedients are not interested in merely pointing out the injustice of certain laws. Their ultimate goal is to have those laws changed. One of the points of confronting officials with the need to enforce the law is to make officials decide whether they are, in fact, going to allow themselves to be willing participants in an unjust regime. Thoreau puts this point well:
My civil neighbor, the tax-gatherer, is the very man I have to deal with—for it is, after all, with men and not with parchment that I quarrel—and he has voluntarily chosen to be an agent of the government. How shall he ever know well what he is and does as an officer of the government, or as a man, until he is obliged to consider whether he shall treat me, his neighbor, for whom he has respect, as a neighbor and a well-disposed man, or as a maniac and a disturber of the peace, and see if he can get over this obstruction to his neighborliness without a ruder and more impetuous thought or speech corresponding with his action.
The idea here is that laws will wilt of their own accord if officials are unwilling to enforce them. This is meant to translate into legislative change on the theory that just as particular officials will not find it in themselves to enforce an unjust law, neither will the public at large find it in themselves to penalize the officials or the lawbreakers. To say that acts of civil disobedience become unconscionable at that point where officials shirk their duty of enforcement is to misunderstand the phenomena.
There is, however, another way of putting the rule of law objection to civil disobedience. Roughly, the objection holds that civil disobedience undermines respect for law because it embodies the principle that one ought to obey only those laws with which one agrees. Former Supreme Court Justice Abe Fortas put the point strongly:
We are a government and a people under law. It is not merely government that must live under law. Each of us must live under law. Just as our form of life depends upon the governments subordination to law under the Constitution, so it also depends upon the individual's subservience to the laws duly prescribed. Both of these are essential…
Each individual is bound by all of the laws under the Constitution. He cannot pick and choose. He cannot substitute his own judgment or passion, however noble, for the rules of law…A citizen cannot demand of his government or of other people obedience to the law, and at the same time claim a right in himself to break it by lawless conduct, free of punishment or penalty.
This line of objection, though, falsely assumes that no distinction can be made between holding that a particular law is unjust and not to be obeyed and holding that, in general, any law with which you disagree may be disobeyed. But we can make such a distinction, and we routinely expect officials to do so. That is, we can and do think that, in general, we ought to obey even laws we disagree with but that some laws are so unjust that they ought not to be obeyed. Some, including Fortas, have objected here that this just amounts to substituting one's own judgement for the legitimate rulings of relevant authorities. This point is misplaced because it illicitly assumes that one's own judgement may be put aside. In fact, when someone is accused of a seriously unjust act we don't consider it a defence that they were 'just following orders' even if those orders were issued by a legitimate authority. We expect, rather, that individuals will govern their actions partly by the dictates of their own conscience. So this line of argument fails.
There is, however, a pragmatic variant of the rule of law argument. Those who offer this variant generally try to position civil disobedients as exemplars who, through their actions, teach society at large that the rule of law is not a viable principle. This argument was used to put blame for the race riots of the late 60s and early 70s on the civil rights protests of the previous 15 years. So the idea is that civil disobedience is wrongful not as a matter of principle, but because of its unavoidable practical consequences.
The answer to this argument, it seems to me, is to insist that respect for the rule of law is best secured by enacting and enforcing laws which are worthy of respect. If the race riots were, in fact, attributable to a lack of respect for the rule of law it seems likely that the damage was done not by a decade and a half of peaceful protest but by centuries of lawful oppression.
I think something similar can be said about laws which prohibit gay marriage. The protests of College Republicans notwithstanding, homosexuals are the only prominent group against whom discrimination is widely accepted and legally sanctioned in the United States. As such, civil disobedience seems to be justifiable.
Pugnacious and Pedantic Addendum
In the main part of the post I granted the claim that what we are seeing in San Francisco is civil disobedience. However, it seems clear that this claim is false.
Generally, civil disobedience is understood to consist in the open and deliberate violation of law for the purpose of changing a law that is considered to be unjust. It is sometimes also thought to require that disobedients violate the same law that they wish to have changed. Additionally, it has been held that civil disobedience requires that disobedients be willing to peacefully accept punishment.
It's not clear what is supposed to count as civil disobedience in the San Francisco cases. Although the mayor appears to be issuing licenses in violation of law, he argues that the law violates the equal protection clause of the California State Constitution and is, as such, invalid. In refusing to issue an injunction, the courts have implicitly accepted that this claim has prima facie plausibility. Moreover, since the courts issued no injunction the mayor is not now acting in violation of law, even if, before the rulings, he was. At most, marriage licenses are being issued which will subsequently be invalidated.
Neither are the couples applying for licenses acting in violation of law. The law does not prohibit them from filing an application. It might be argued that knowingly accepting an invalid license is a violation of law, but that won't be an issue until a court has ruled the licenses to be invalid.
This all stands in stark contrast to the case of Justice Moore. When he installed the sculpture of the ten commandments he could not have reasonably believed that the law prohibiting that act was invalid or unclear. Moreover, Moore refused to remove the sculpture even after an injunction had been issued.
In sum, the San Francisco cases aren't civil disobedience for the simple reason that nobody is acting in violation of the law. Rather, what is happening there is more like a series of test cases.
edited for clarity