Some of Davis' supporters have compared her to Rev. Martin Luther King, Jr. Given the body of his work in championing the cause of civil rights, that is anathema to a lot of us. But Dr. King was very strong in his commitment to civil disobedience and wrote specifically in support of breaking laws that one deems to be unjust. Here is how he made the distinction:
You express a great deal of anxiety over our willingness to break laws. This is certainly a legitimate concern. Since we so diligently urge people to obey the Supreme Court's decision of 1954 outlawing segregation in the public schools, it is rather strange and paradoxical to find us consciously breaking laws. One may well ask, "How can you advocate breaking some laws and obeying others?" The answer is found in the fact that there are two types of laws: there are just laws, and there are unjust laws. I would agree with St. Augustine that "An unjust law is no law at all."Dr. King gives three examples of how to distinguish between a just and an unjust law. First is the moral test. Ms. Davis might suggest that, given her beliefs, signing off on gay marriage licenses is against her morals. But here is Dr. King's test: "Any law that uplifts human personality is just. Any law that degrades human personality is unjust." Does signing off on a marriage license create an "I-it" relationship? I would suggest just the opposite.
Now, what is the difference between the two? How does one determine when a law is just or unjust? A just law is a man-made code that squares with the moral law, or the law of God. An unjust law is a code that is out of harmony with the moral law. To put it in the terms of St. Thomas Aquinas, an unjust law is a human law that is not rooted in eternal and natural law. Any law that uplifts human personality is just. Any law that degrades human personality is unjust. All segregation statutes are unjust because segregation distorts the soul and damages the personality. It gives the segregator a false sense of superiority and the segregated a false sense of inferiority. To use the words of Martin Buber, the great Jewish philosopher, segregation substitutes an "I - it" relationship for the "I - thou" relationship and ends up relegating persons to the status of things. So segregation is not only politically, economically, and sociologically unsound, but it is morally wrong and sinful. Paul Tillich has said that sin is separation. Isn't segregation an existential expression of man's tragic separation, an expression of his awful estrangement, his terrible sinfulness? So I can urge men to obey the 1954 decision of the Supreme Court because it is morally right, and I can urge them to disobey segregation ordinances because they are morally wrong.
Let us turn to a more concrete example of just and unjust laws. An unjust law is a code that a majority inflicts on a minority that is not binding on itself. This is difference made legal. On the other hand, a just law is a code that a majority compels a minority to follow, and that it is willing to follow itself. This is sameness made legal.
Let me give another explanation. An unjust law is a code inflicted upon a minority which that minority had no part in enacting or creating because it did not have the unhampered right to vote. Who can say that the legislature of Alabama which set up the segregation laws was democratically elected? Throughout the state of Alabama all types of conniving methods are used to prevent Negroes from becoming registered voters, and there are some counties without a single Negro registered to vote, despite the fact that the Negroes constitute a majority of the population. Can any law set up in such a state be considered democratically structured?
The second example Dr. King gives of an unjust law is "a code that a majority inflicts on a minority that is not binding on itself." In the case of gay marriage, I would say that this is the opposite of what the Supreme Court recently did.
Finally, an unjust law is one where the people affected did not have the "unhampered right to vote." I suppose that Davis supporters will say that, since this involves a Supreme Court decision, she did not have the right to vote on equal marriage. But we live in a representative democracy founded on a constitution that allows the people we vote for to nominate and approve Supreme Court justices. As such, Ms. Davis has had ample access to the voting booth.
So, with that information, I would let you judge whether it is fair to compare Ms. Davis' actions to those of Dr. King when it comes to civil disobedience. But to do so, we also need to keep one more important thing in mind. Those words from Dr. King are part of his famous "Letter from Birmingham Jail." At the heart of Dr. King's commitment to engage in civil disobedience was an acceptance that doing so meant going to jail.
Later in that letter he talks about the necessary "tension" that is created when moral people are jailed for breaking unjust laws. That is at the heart of any strategy that incorporates civil disobedience. And so Davis' supporters - including several Republican presidential candidates - are completely missing the point when they rail about her being sent to jail for disobeying the law. That is the whole point of civil disobedience.
I'm frankly not surprised that conservatives have such a poor understanding of the role of this kind of strategy. Engaging in civil disobedience has alway been a much more natural approach for those who are truly oppressed or marginalized in our society. But among liberals, I've seen some serious distortion of the principles as they do/do not apply in this situation. If we are going to preserve a commitment to civil disobedience, it is important to keep a clear head about all that.