Academic journal article Harvard Journal of Law & Public Policy

Moral Duty and the Rule of Law

Academic journal article Harvard Journal of Law & Public Policy

Moral Duty and the Rule of Law

Article excerpt

In his immortal play A Man for All Seasons, Robert Bolt provides a fictional account of an argument between Sir Thomas More, who served as the Chancellor of England and would later become the patron saint of lawyers and judges, and his son-in-law, William Roper. (1) Their argument is about the demands of fidelity to both law and morality. In the course of that argument, More pleads, "The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal." (2)

Roper then makes two provocative charges against More. First, Roper asserts to More, "Then you set man's law above God's!" (3) More responds in the negative:

   No, far below; but let me draw your attention to a fact--I'm not
   God. The currents and eddies of right and wrong, which you find
   such plain sailing, I can't navigate. I'm no voyager. But in the
   thickets of the law, oh, there I'm a forester. I doubt if there's a
   man alive who could follow me there, thank God ... (4)

Later Roper charges, "So now you'd give the Devil benefit of law!" (5) To that charge, More responds in the affirmative and asks a question of Roper: "Yes. What would you do? Cut a great road through the law to get after the Devil?" (6) Roper then falls into the trap when he answers, "I'd cut down every law in England to do that!" (7)

More then offers the most memorable lines of the entire play:

   Oh? And when the last law was down, and the Devil turned round on
   you--where would you hide, Roper, the laws all being flat? This
   country's planted thick with laws from coast to coast--man's laws,
   not God's--and if you cut them down--and you're just the man to do
   it--d'you really think you could stand upright in the winds that
   would blow then? Yes, I'd give the Devil benefit of law, for my own
   safety's sake. (8)

Robert Bolt's portrait of Saint Thomas More offers lawyers and judges the right role model. I have been asked to contribute to this Symposium on Law and Morality by reflecting on my personal experiences of being embroiled in controversies about the potential conflict of moral and legal duties, both as a former state attorney general and a nominee for a federal judgeship. The stakes of those controversies, thankfully, were not nearly as high as those that led to the execution of Saint Thomas More, but they were high drama in the contemporary arena of American law and politics. In each instance, the law offered me the right path to follow.

My first experience came in June 2003, two months after the President nominated me to serve as a United States Circuit Judge. That nomination was controversial for several reasons, among them my public statement as a politician that Roe v. Wade (9) was "the worst abomination of constitutional law in our history," (10) my defense as attorney general of an Alabama law that made sodomy a crime, (11) and even my decision as a parent to plan a family vacation at Disney World so as not to coincide with the Gay Day festivities at the park. (12) During my confirmation hearing, (13) a few members of the Senate Judiciary Committee raised questions about my "deeply held" beliefs (14) and whether I was "asserting an agenda of [my] own, a religious belief of [my] own, inconsistent with [the] separation of church and state." (15) When the Committee Chairman, Senator Orrin Hatch, responded to these statements by asking about my Catholic faith (16) and then asserting that "in every case" he could see, I had "followed the law regardless of [my] ... religious beliefs," (17) two other Senators objected to Chairman Hatch's reference to my religion. (18)

Later that summer, an interest group sponsored political advertisements that described opponents of my confirmation to the federal bench as engaged in discrimination against me based on my Catholic faith. (19) The advertisement portrayed a sign that read, "Catholics need not apply," hanging on a door to a federal courthouse. …

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