I first broke laws back in 1969, when I was working for Cesar Chavez’s United Farm Workers in California. We were picketing vineyards, boycotting the grocery stores, nonviolently interfering with the profitable operation of the grape industry to the extent of our abilities, and, yes, defying court orders.
In 1972, I became one of the co-founders of the Pax Center, a Catholic Peace and Justice center in Erie, Pennsylvania. In the decade that lay ahead, we sponsored various kinds of protests against nuclear arms and U.S. military involvement in Latin America, including sit-ins at congressmen’s offices. I was part of a Jonah House group which scattered blood and ashes in the concourse of the Pentagon, and we were all convicted of depredation of government property.
By the late 1970s I became involved in sit-ins—now called “rescues”—at abortion facilities and was arrested about a dozen times on charges like trespass, unlawful assembly, and failure to disperse. In 1987, I organized “We Will Stand Up,” which was an attempt to use nonviolent direct action to get the abortion industry to shut down during Pope John Paul’s nine-day visit to the United States; an abortion cease-fire, we called it. In 1988, I was media coordinator for Operation Rescue in its New York and Atlanta campaigns.
I’ve never in my life been an academic or a professional, but I have been an organizer and activist with a rather broad range of experience over the past 20 years. I know that some activists equate civil disobedience directly with divine obedience. But just as everything that’s blowing in the wind is not the Holy Spirit, and just as every opinion poll is not the equivalent of the sensus fidelium, so every act of defiance to the State is not an act of submission to God.
Some kinds of civil disobedience are simply not justified. Other kinds are morally neutral, or, simply, permissible. And there are some kinds of civil disobedience that have the nature of moral obligation; that is, in some circumstances, it would be sinful not to disobey the law. My purpose is to distinguish different kinds of civil disobedient action; find criteria for deciding whether or not a particular action is justified; and offer some ideas about the role of police, prosecutors, jurors, and judges in civil disobedience situations.
First, a basic definition. Civil disobedience presupposes a conflict between conscience and law. But who knows what “conscience” is anymore? Some people assume that conscience is an individual moral inclination which arises in an intuitive, perhaps even a mystical way. They think its interpretation is purely subjective: “I’ve got to follow my conscience,” they’ll say, just as a certain kind of Protestant will say, “My Bible tells me that . . .” etc. This conception of conscience, therefore, lacks public force and may even seem irrational.
But individual moral inclination is not conscience, only preference. And every criminal act results from a conflict between such preference and law. I may “prefer” to seek a higher understanding of the universe through smoking cannabis leaf resins; I may “prefer” to reduce my federal income tax by 50 percent; I may “prefer” to see my comatose dependent dead.
If I act on those preferences, it’s not civil disobedience. It’s criminal, culpable lawbreaking.
By contrast with mere preference, conscience is a faculty which obliges us to uphold objective moral justice. As Pope Pius XII rightly said, “Conscience is a student, not a teacher.”
So it is wrong to suppose, as some people do, that civil disobedience is, in the main, a loose, liberal, nihilistic kind of thing. The whole idea of civil disobedience rests on the fact that there are criteria for right and wrong which are objective, and which transcend positive law.
Christians, Jews, and Moslems have religious commandments, in writing, which they regard as having eternal validity, and with which they can confidently challenge transient governments and their imperfect legal structures. The same is true for the person who believes that moral standards exist in the structure of human nature, or of the cosmos itself.
Classic conservatives regard themselves as answerable to a moral law which they did not originate, but by which they are bound. Thus, only conservatives can commit civil disobedience.
Philosophical liberals see morality as being in a state of flux. They say they derive it from their “lived experience”—their morality, they’re pleased to tell you, is highly responsive to the changing patterns of human needs and wants. In other words, morality is preference. Of course, such liberals can also break the law, but when they do, they can hardly claim to be oriented toward objective justice, whose existence they deny.
Please note here that I’m describing philosophy, not politics. Frankly, most political right-wingers are liberal to the core. On the other hand, some people who are seen as being politically left-wing are in fact moral conservatives.
Consider three kinds of civil disobedience. First, there are symbolic actions. Second, there are legal test cases. And third, there are what I’ll call “God-or-Caesar” actions.
In symbolic actions, law is broken mainly to provide a kind of admirable spectacle. For instance, you decide to spray-paint the words “Abortion Kills” on the side of a hospital whose prenatal care includes extermination. Or you scale the fence at a military base in order to plant some wheat on the other side, and unfurl a banner saying “Bread Not Bombs.”
In any of these actions, the law you have broken is not in itself an unjust law. It’s not unjust to prohibit spray-painting hospital buildings or trespassing onto some areas of government property. But you do so in order to add drama or urgency to your communication. And when you’re arrested and come to trial, you may try to defend yourself on the grounds that what you did was somehow protected by the First Amendment; it was symbolic speech. It’s a form of communication.
This kind of symbolic action has been the most common form of civil disobedience used by the peace movement in the past 20 years. Some of it is merely the staging of a “media-event.” You have to sit-in at the rotunda of the U.S. Capitol to demand aid to the contras. Or to denounce aid to the contras. Anyway, you’ve got your own camcorders out there, you’re taking each other’s pictures, and you’ve called the Washington Times or the Washington Post and CNN and the local network affiliates.
What are you trying to do? Precisely, you’re trying to get arrested. That’s the media hook. You’re using the police to create drama to get to the media, and using the media to get to the public. And using the public, ultimately, to get to their Senator or Representative. The arrests are polite, everybody pays a $50 post-and-forfeit, goes home, and hopes the publicity hit the jackpot: network coverage.
Symbolic action is the weakest and least justifiable kind of civil disobedience. Why? Because you’re not disobeying an unjust law. There aren’t any contras in the rotunda, and most likely you won’t run into any congressmen there, either. The whole thing is being choreographed for the camera’s eye. It is a misuse of the police force and an abuse of the court system. It’s not a real action, and it doesn’t put you at real risk. It is simulated resistance.
The media have become rather cynical about staged spectacles, and so such spectacles are becoming less effective year by year. But under the category of symbolic acts, there are some which don’t even try to appeal to the media, which don’t even try to appeal to public opinion, and which are even less effective and, in my view, less justified.
For instance, there are those who practice civil disobedience for periodic catharsis or in order to experience certain other kinds of emotional sensations. These are the people who, after the action—whatever it was—will claim it was “powerful,” or even a “religious” experience.
Now, I don’t want to deny one can enjoy a sense of exhilaration when doing a noble deed, and it is legitimate to try to employ elements of group morale-building in civil disobedience campaigns. The civil rights movement used black gospel music to move, exhort, and inspire—and people need that. But it is subtly—and sometimes not so subtly—corrupting, to participate in civil disobedience in order to get a kind of joyful rebel high. A certain evangelical social justice activist group is famous for its observation of Peace Pentecost: banners, streamers, great congregational singing, everybody gets arrested at the rotunda, everybody out by eleven that night. I’ve heard people say they “do” the Peace Pentecost thing every year just to get their emotional batteries recharged.
Surely this is self-indulgence, a kind of “recreational resistance.” If you’re trying to communicate with your legislators about peace matters, why not have church service first, get pumped up, and then communicate with your senators and representatives by going and talking to them. Too prosaic? Yet it would be more to the point, I think, than processing into the rotunda for your annual ceremonial failure-to-disperse.
In addition to the media event or “simulated resistance,” and somewhat related to what I’ve just described as “recreational resistance,” there’s another kind of symbolic action which involves performing ritualized illegal actions with the belief that you are thereby sending out vibes or cosmic energy or some cosmic energy or some such thing, to effect social and political change. I call this “voodoo resistance.”
I realize I’m treading on mighty thin ice here. Everyone who has a deep and religious desire to end a war, to stop abortion, to overthrow a tyrant—believing this to be the will of God—also prays, and tries to make his action into a prayer, and hopes that through the Holy Spirit, his efforts and sacrifices can attain a mysterious fruitfulness. People of faith often look beyond immediate effectiveness—savvy use of the media, political potency, and so forth—and hope that if their actions are truthful, God will bless them and work all things together for the good. I respect that.
But I’m talking about something slightly different. I’m talking about people who are on that uneasy borderline between what Catholics understand as a Sacrament, and what pagans understand as, well, occult forces. Cosmic energy. Wicca.
Sometimes it is frank paganism. I remember that in 1967 poet Allen Ginsberg wanted all the anti-Vietnam War hippies to surround the Pentagon, hold hands, and chant “Om.” Before the federal marshals arrived to take everybody away, the Pentagon was supposed to rise up off the ground, turn orange, and vibrate; then the evil demons would be expelled. Some people said that it did.
There have been radical women’s vigils at Greenham Common, a NATO nuclear missile base in England, and at the Seneca Army Depot in New York, where nuclear components are stored. Many of these women are into goddess worship or nature mysticism. On occasion they’ll make a break in the fence or penetrate the base perimeter in order to chant in a ritual circle, and paint peace signs and pentagrams and magic runes on military property.
I know what you’re thinking: major goofball involvement. Twilight zone. But how does this differ from the actions of Christian peace folks who insist on conducting an Easter Sunrise Service Plus Criminal Trespass at the Nevada Nuclear Test Site? Or Catholic pro-lifers who insist on saying their rosaries on the steps of the U.S. Supreme Court? My own view is that civil disobedience as a media event, as an emotional high, or as a way of having some kind of self-consciously spiritual or mystical experience, is wrong. I’ve never said that in public before. But there it is.
Moving beyond symbolic actions, let’s look at the second category of civil disobedience. Test case disobedience involves deliberately breaking an unjust law in order to gain access to the legal process which could overturn that law. Such disobedience was widely used to challenge so-called Jim Crow or segregation laws in the South in the ’50s and ’60s. A black movie-goer sits in the white section of the theater; he or she is arrested, tried, and found guilty; an appeals process is started; and eventually the State Supreme Court, or possibly a Federal court, overturns the local segregation ordinance as unconstitutional.
Since creating test cases is an accepted way to challenge the constitutionality of laws, the kind of civil disobedience involved is actually not a challenge to the legal system. It’s part of the legal system; it’s the way an individual can get his or her “day in court.”
It has been charged over the years that the Federal Courts have shown, shall we say, considerable exegetical creativity in interpreting the Constitution, giving the received texts a good deal more elasticity than they’d had in the first century of their existence. If this is so, then test cases have been used, not merely to restore Constitutional rectitude, but to promote social change through the judiciary.
Whether such social changes were just we would have to debate on a case-by-case basis. But whether changes which effect an entire society should be pursued through the unelected judiciary rather than through elected lawmakers is another question, and a very serious one. I suspect that a good case could be made for the proposition that seeking radical social change by judicial fiat is alien to the ethic of nonviolence.
Finally, let us consider the third kind of civil disobedience which, I think, really constitutes the heart of the matter: it’s action outside the law which arises in a God-or-Caesar conflict.
There are two ways that the state can come into conflict with divine law. First, the state can overreach its legitimate power; for instance, by making state schooling mandatory at an earlier and earlier age and replacing parental authority in the upbringing of children. Second, the state could under-reach, so to speak, by failing to do something that government is obliged to do: for instance, by failing to require performance on a contract or by failing to prohibit murder.
What happens if the state commands something which God forbids? Or, conversely, if the state forbids something which God commands? Well, it’s like when an irresistible force meets an immovable object: something’s got to give.
These are the kinds of situations you find in the Acts of the Apostles and the Lives of the Saints. The state requires idolatry, the worship of Caesar. Divine law forbids it. A just person has no choice; he or she must disobey the law. Or the state prohibits what the godly conscience requires; say, the state prohibits preaching the Gospel. Once again, a just man, a just woman must defy the law.
In this kind of head-to-head confrontation, a person of faith must disobey an ungodly law no matter what. Even if his or her action is apparently counterproductive. Even if it turns off the media. Even if there’s no possibility of a successful appeal. Even if it results in crushing personal defeat.
The examples I’ve given have been conflicts in the realm of faith: preaching the Gospel or worshipping Caesar. But there can be equally grave conflicts in the realm of morals. For instance, in the case of the military draft: what if the state has ordered you to fight in a war which you are convinced was sinful in the eyes of God?
Or imagine the plight of a believer who takes seriously the Gospel command to feed the hungry and shelter the homeless. What will such a person do if zoning or lease regulations forbid taking street people into your own home—even though the street people are freezing and it’s the dead of winter? Or what if the Immigration and Naturalization Service forbids sheltering illegal immigrants?
This was the kind of conflict faced by Franz Jaegerstatter, an Austrian who, in 1942, refused to be conscripted into Hitler’s army. And by Stacy Merkt, an American who illegally aided undocumented immigrants fleeing political repression in El Salvador. For Jaegerstatter, for Merkt, it was not necessarily a question of changing a government policy or challenging a regime. It was a question of immediate obligation, the love of God and even the fear of hell. They simply had to do what they did. This is a stark choice. It can lead—as it did in Jaegerstatter’s case—to martyrdom.
But in American law, especially in life-or-death situations, this kind of civil disobedience opens up some interesting legal alternatives which ought to be explored. The first is the necessity defense. Under ordinary circumstances, claims of religious or moral intent are not defenses in criminal prosecution. But common law provides that if the illegal action was necessary in order to save a life, prevent substantial harm, or prevent a more serious crime from occurring, the lawbreaker may have a defense of necessity or legal justification.
Here’s the classic example: say an elderly woman is trapped on the second floor of a burning building. You grab a ladder, push away some onlookers who are blocking your path, run onto property (even posted, private property), climb up to the second floor, break through locked window, and save the woman. What about theft of the ladder, assault against the onlookers, unlawful entry onto the property, and breaking and entering the building? None of these actions, in this context, would be treated as criminal. The police would not arrest you, the prosecutor would not press charges, no jury would convict you, and no judge would sentence you. Why? Because the purpose of law itself is, centrally, to protect life.
And not only life, by the way, but even valuable property. If, instead of an elderly woman, you were attempting to save the scrolls of the Torah, an irreplaceable piece of sculpture, a valuable violin, or a million dollars cash, you would almost certainly not be prosecuted for trespass or anything else, and if you were, you could almost certainly win an acquittal with the argument that your actions were justified.
In order to press this sort of defense successfully, you generally have to prove that your act was a reasonable attempt to avert a harm; that the harm you were trying to avert was substantial and imminent; that you had at hand no other adequate, lawful means of averting the harm; and that your action was proportionate; in other words, that the harm done by your lawbreaking was less than the harm you were trying to avert.
In the past decade, the two outstanding Civil Disobedience groups which have attempted to use a necessity defense in court have been the Plowshares activists (the people who take hammers and attempt to destroy components of first strike nuclear weapons) and the rescue movement activists (the folks who sit in front of the doors to shut down abortion facilities).
In both cases, their action was intended to avert a serious, imminent harm: on the one hand, the deployment of first-strike nuclear weapons; on the other, deliberate, fatal injury to a developing child. In both cases, the activists believed there was no adequate legal method of averting the harm, and that the damage their lawbreaking might cause was far smaller than the harm they were trying to prevent.
In fact, I can think of no case more immediate, more serious, or more direct and obvious than a pro-life rescue, as fitting the conditions for a necessity defense. And inasmuch as the debate about abortion has tended to center on the personhood of the child before birth, the rescuers have the advantage that they don’t have to prove that the unborn are persons. All they have to prove is that they have some value greater than the damage to property caused by the act of civil disobedience.
There have been instances—though admittedly rare—where police have declined to arrest abortion clinic sit-in people, or where district attorneys have excused themselves from prosecuting, or where juries have acquitted them, or judges have suspended sentences, owing to the just and necessary nature of a pro-life rescue. I believe that police, prosecutors, judges, and juries are acting rightly, both morally and legally, when they refuse to treat people engaged in protective, lifesaving actions as if they were criminals. This is not subverting the law. It is applying the law.
When speaking of the right and obligation of juries to acquit in a “necessity” case, I must at last mention in passing the venerable Anglo-American tradition of “jury nullification.” This legal theory dates back to colonial America and the trial of one John Peter Zenger, a printer who published articles critical of the colonial governor of New York. He was brought to trial in 1735 on the charge of seditious libel.
The judge in Zenger’s case instructed the jury that the mere fact of publication was sufficient to convict. However, Zenger’s lawyer, Andrew Hamilton, urged the jury to judge, not just the facts of the case, but the law itself.
Granted that Zenger did print the articles in question, granted that such publication was technically illegal, did the jurors think it was a crime? Zenger was acquitted. This case, which upheld freedom of the press in America, also established something which is not yet as widely recognized: the freedom of the jury.
There is potential for abuse. One can imagine a jury voting to acquit a member of a favored social group, even after his or her guilt had been clearly proven. But the fact is, a jury always has the power to acquit, regardless of the letter of the law, regardless even of the instructions of the judge. Because of the Constitutional protection from double jeopardy, a defendant, once acquitted, cannot be tried again, and the jury cannot be penalized for rendering a “wrong” verdict.
Hence, jurors must take seriously their moral obligation both to guard against local and personal prejudices and to do justice with regard to the moral foundation of all law. They must uphold the right to tell the truth (as in the Zenger case) and the right to protect fellow human beings from imminent harm (as in the necessity cases).
Justice is not done by robots, by computers, by the colonial governor’s lackeys. Justice is in the frail hands of men and women in every choice they make, in their “official capacities” and in their private transactions as well. If an act upholds truth and life, if it is truthful and life-giving in the doing, then it should be defended, justified, and upheld by every officer of the court and every member of the justice system without exception.
Civil disobedience cannot be a matter of simple personal preference. St. Paul warns us to “crucify all self-indulgent passions and desires.” At the same time he enjoins us to act with “love, joy, peace, patience, kindness, goodness, trustfulness, patience, and self-control. Against such,” he concludes, “there is no law.”