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

Article excerpt

Byline: Richard Land, SPECIAL TO INSIGHT

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). …