It has always been true, and is increasingly becoming more common, that things which are moral, are not always legal, and things which are immoral are not always illegal. However, there always has been, and always will be, an inseparable link between morality and law. While it is the duty of law to keep societies organized and governed, it has also been its duty to do so in a moral way. Sadly, given the corruptible nature of man, it is inevitable that law and morality will at times come into conflict. The divine principle when such conflicts arise is that morality must prevail. The rule of law is a powerful and protective concept, until that law becomes oppressive and immoral, and thus ceases in its divinely appointed function. That is when the rule of morality must prevail.
This first principle here is that morality is higher than law and it lies at the basis of our government’s inception. In fact, had the founding fathers placed the rule of law, the king's law, above their own moral convictions of justice, there would have never been a United States of America. The Declaration of Independence outlined it thus:
“That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.
Of course in the eyes of the established British government, that declaration was sedition, and its signers were treasonous. From a moral perspective the founders acted against the established laws in the furtherance of higher moral principles, and were right in doing so. Morality has been the driving force of many reformers since that time, such as Mahatma Gandhi, Martin Luther King Jr., Eric Bonhoeffer and Nelson Mandela, the latter two being touted in a recent General Conferences for their actions taken against established law, in furtherance of what they deemed to be higher moral principles. Joseph Smith’s powerful treatise on government allows for the supremacy of morality over law, limiting man’s obligation to “sustain and uphold” their governments to times when they are “protected in their inherent and inalienable rights by the laws of such governments” inferring at least that those unprotected, are no longer obligated to uphold such governments.
(D & C Section 134:5)
Nuremberg and Moral Duty
Once the immoral and destructive government of Nazi Germany was finally ousted, and the unfathomable atrocities committed under its rule of law was revealed to the world, many of the government officials were brought to be held accountable before tribunals. Almost without fail the defense argument offered to justify their clearly inhuman and debased actions, was that they were acting according to law, and doing their duty as outlined by that law. That was true of course, but the horrendous nature of their actions compelled the world at large to reject their reasoning, and to still hold them accountable for their immoral conduct, in spite of the fact that they actually were acting under the color of law. This supremacy of moral principle is still taught to Soldiers within our Army. They are taught, and even take an oath, to obey the orders of the officers appointed over them. However, they are also taught that they are not required to obey orders to act in immoral or inhuman ways, notwithstanding their oaths.
While I do not factually equate extermination or genocide with issuance of marriage licenses, the topics of the analysis are never controlling, it is the underlying principle that controls. Thus every German public official, who violated their oath of office, and acted contrary to their legal duty, doing so on the basis of higher moral principles in order to save Jews, Jehovah witnesses and others from destruction, should be touted as heroes. Those who would demand that Kim Davis act contrary to higher moral principles, simply because of an oath of office, must necessarily embrace the defense offered by the many German officials who ignored conscience, and cast aside morality, and sought only to do their sworn duty. One of the great undertones of the Movie “A Man for All Seasons” is the aggravating, but frequently seen, attitude taken by the common man, who causes great harm to Sir Thomas Moore, always with the quip that they are only doing their duty.
The Rule of Law
While there was protection and safety in the concept of the rule of law as it originally existed, that concept is becoming a notion, a vestige of past moral standards. Originally the rule of law included the concept that no man was above the law, that the law, like a god, was supreme to all men and authority. Stare Decisis, was an essential part of that law. Which meant once a legal decision was made, it must stand. Early jurists recognized that moral laws must remain steady and inviolate or they lose their power to govern. Some believe that the constitution is in disarray and that the balances of power have been seriously degraded. They see the courts as becoming super legislatures, who have elevated themselves above the law, applied their private morality to their decisions, and now use the rule of law, to rule in an oppressive and immoral way. In the eyes of some conservatives, it is as if the majority of the Supreme Court, as well as the lower Circuit Courts, have become the King, and now use their judicial power not to support the constitution, but to usurp and deform it to their private ends. If the rule of law actually becomes a tool of tyranny, then it no longer has the power to protect and bring order, but rather becomes the oppressor leading to absolute despotism. In such cases, having lost the protection of the rule of law, it may be the case that civil disobedience in accordance with higher moral principles, is no longer a vice, but rather becomes a virtue. Segments of our society still recognize and acclaim such virtue in the civilly disobedient actions of both private and government individuals, which were rampant during the civil rights movement.
It seems disingenuous for a society to tout the civil disobedience of great reformers throughout history, only to turn and attack a person who believes she is acting on the same higher moral principles, against what she may see as a despotic government.
About The Oath
In light of the foregoing it is important to note that most oaths for government service are made before God and to the effect that the party will support and defend the Constitution against all enemies, foreign and domestic. Some questions for ethicists and the public at large are; If a court violates the constitution, usurps power, and destroys the balance, does that court then by definition become an enemy of the constitution, and if so, does civil disobedience become a legitimate step that the oath bound party may take to defend the constitution against those actions? One of my favorite movie clips on this topic, depicts a firing squad of German soldiers lined up to assassinate innocent civilians from a local village. Suddenly one rifle barrel drops, a sign that the individual soldier will not comply with his sworn duty because of his higher moral principles. Eventually, after refusing to yield to his superior’s demands, he is removed from the squad, and sent to join the civilians along the wall, meeting their same fate because of his adherence to higher moral principles. As Latter-day Saints, we should at least ponder over what our church would be like, had General Doniphan acted in accordance with the direct orders of his superior, General Lucas, at Far West, Missouri. Thankfully, he acted on higher moral principles and refused to execute Joseph and Hyrum Smith, saying:
“"It is cold-blooded murder. I will not obey your order. My brigade shall march for Liberty tomorrow morning, at 8 o'clock; and if you execute these men, I will hold you responsible before an earthly tribunal, so help me God…”
Taken to its extreme, any argument that suggests that civil disobedience, by private citizens or government officials, is NEVER appropriate, becomes an argument for the justification of all sorts of atrocities and immoral actions made by corrupt governments and its officials, simply because they are governments. Such belief would twist Christ’s comment to the conniving Pharisees to be: “Render unto Caesar everything, even all which is God’s.” That is a place I hope we never come to.