Chief Justice Roy Moore and the Inherent Problem with “Natural Law” [Updated]

[Note: Post is updated below]

I have only felt compelled to write a newspaper columnist once in my lifetime.

The letter was sent in the mid-1990s to Steve Duin, a centrist columnist in Portland’s flagship newspaper The Oregonian. My letter concerned a piece Duin had written about a young atheist teenager who was attempting to sue the Boy Scouts for religious discrimination.

I remember very little about the particulars of the actual case (it’s possible I have the Boy Scouts bit wrong), but I remember quite vividly what had inspired me to take the time to write and scold Duin.  His column argued that since the teen didn’t believe in a “higher power,” the boy had no basis to demand that society be more moral and just.  Duin’s position wasn’t that atheists shouldn’t be allowed to prevail in such court cases; it was that they shouldn’t be allowed access to the mechanizations of a liberal democracy’s court system to begin with.  (For what it’s worth, Duin graciously wrote back to me several times as we each tried to figure the other out; we finally decided to essentially “agree to disagree.”) Though he never used the term himself, Duin’s column was my first real-world experience with someone using the concept of Natural Law to argue the way basic public policy ought to work.  It was also the first to show the inherent flaw that devotion to Natural Law carries within its fold.

I was reminded of my conversation with Duin this week when a public speech by Roy Moore made the daily intertube-outrage rounds.

Moore, who currently serves as the Chief Justice for the Alabama Supreme Court, was speaking at the Pastor for Life Luncheon, an annual event hosted by the non-profit group Pro-Life Mississippi.  Much of Moore’s Pastor for Life speech comprised of the type of arguments one might expect to hear a pro-life advocate make.  One bit did raise eyebrows, however: Moore’s argument that the First Amendment should only apply to Christians:

“Everybody, to include the U.S. Supreme Court, has been deceived as to one little word in the First Amendment called ‘religion.’ They can’t define it. They can’t define it the way Mason, Madison and even the United State Supreme Court defined it, ‘the duties we owe to the creator and the manner of discharging it.’ They don’t want to do that, because that acknowledges a creator god. Buddha didn’t create us. Mohammed didn’t create us. It’s the god of the Holy Scriptures…

“They didn’t bring a Koran over on the pilgrim ship, Mayflower. Let’s get real. Let’s go back and learn our history.”

Roy Moore and Steve Duin are very different people.  My guess is that were you to make a spreadsheet of where each sits on every political litmus test over the past twenty years their areas of agreement would be dwarfed by their disagreements. But one thing they do share is a belief in a single principle that, they argue, should guide all public policy: Natural Law.  That each has used this concept to craft an argument — ironclad to each — that specifically and purposefully disenfranchises law-abiding segments of society isn’t a coincidence.

Not everyone who supports Natural Law advocates for disenfranchisement, obviously.  Nonetheless, each person who argues for Natural Law unwittingly passes along the seeds of disenfranchisement. On paper, theories of Natural Law promise a liberal democracy at it’s most inclusive.  In a real-world, non-academic setting, however, the road of Natural Law ultimately leads to Roy Moore.

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If Roy Moore’s name seems familiar to you, it’s likely because it is.  In 2000, during his first stint as Chief Justice, Moore gained national fame (and to some, notoriety) by commissioning a two-and-a-half ton granite monument to the Ten Commandments and installing it in the Alabama Supreme Court’s rotunda.  Within a year, a group of Alabama lawyers filed a Federal civil suit to have the statue removed, citing the First Amendment’s Establishment Clause.  When both the District and the Appeals Court found in favor of the plaintiffs, Moore refused to comply with the ruling,^[1] saying:

“As Chief Justice of the State of Alabama, it is my duty to administer the justice system of our state, not to destroy it. I have no intention of removing the monument of the Ten Commandments and the moral foundation of our law. To do so would, in effect, result in the [be a] disestablishment of our system of Justice in this State. This I cannot and will not do!”

If a Supreme Court Chief Justice’s refusal to acknowledge the authority of the court is surprising, it’s less so when viewed through the prism of a belief in Natural Law.  After all, advocates of Natural Law declare themselves the herald of no less an authority than God.  The mechanizations of a liberal democracy are legitimate only when they comport with the will of the Almighty; when they do not, they are by definition refutable.  Thus for Duin denying the agency of the court system to atheists doesn’t run counter to the principles of our Constitution, it upholds them.  The same is true with Moore’s excommunication of non-Christians from their civil rights.

Of course, many will argue that Duin and Moore are simply extreme examples of embracing the concept of Natural Law.  A few years ago Burt defined the term for me in a way that didn’t require the existence of God at all:

Natural law incorporates the concepts that the positive law is subject to and derives from morality. That which is morally good is the object of the law. That which promotes evil (the opposite of the good) is not law at all.
 

The idea that what is good and what is evil is malleable with changing historical circumstances is, of course, deeply disquieting to natural law advocates who would like to point to something unchanging and true about their philosophical vision of the law. And if you reject the notion that some nebulous (or nouminous, if you prefer) thing in some state of existence called “the good” then natural law becomes a whole lot harder to buy in to.

For me, however, the inherent danger of Natural Law is given away in that second paragraph.  For if you believe that there is an absolute Good and Evil — and that these absolutes are knowable — then you tend to favor the systems that most clearly and staunchly define them. You are pushed, ultimately and over time, toward a place where doubt does not exist and is not welcome.  And a lack of doubt concerning what God considers Good and Evil public policy always leads to the disenfranchisement of the Other  — if not in individuals, then certainly in groups. For those who consider themselves warriors of The Truth, doubt is synonymous with moral relativism even though they are in fact disparate things.  One can believe that there is good and evil and still doubt exactly where to draw the line.  And make no mistake: embracing that doubt is necessary in a pluralistic society.

It is no coincidence, I would argue, that supporters of Natural Law tend to skew so heavily toward disenfranchising gays and lesbians — and not just in their opposition to same-sex marriage.  In 2002 while ruling on the case D.H. v. H.H. as Chief Justice, Moore argued that Natural Laws dictates that the State be allowed use its power to punish “homosexual behavior:”

“The State carries the power of the sword, that is, the power to prohibit conduct with physical penalties, such as confinement and even execution. It must use that power to prevent the subversion of children [homosexuality], to not encourage a criminal lifestyle…

Homosexual behavior is… a crime against nature, an inherent evil, and an act so heinous that it defies one’s ability to describe it… To declare that homosexuality is harmful is not to make new law but to reaffirm the old.”   —  [note: emphasis mine]

That is a Supreme Court opinion that has zero doubt about God’s will.  So too is this assertion that our Constitution civil rights be granted only to Christians.  Sure, Moore will be the first to concede that four years of law school and two hundred of court precedent say otherwise — indeed, he does say so in his Pastor for Life speech.  But a belief in Natural Law states that there is a higher law than what mortal men can craft, and that this law must be granted supremacy.  And if that supremacy is doubtless, then Roy Moore isn’t just a more extreme apostle of Natural Law — he’s a more honest one as well. (He’s also consistent.  Proponents of Moore and his Natural Law approach to law shouldn’t be surprised by his position on civil rights for non-Christians.  He’s previously argued that Muslims should be disqualified for public office on the basis of their faith.)

It’s also no coincidence that champions of Natural Law tend to be Constitutional Originalists.  Part of this stems from the fact that many of the Founding Fathers themselves were big on Natural Law.  But there is also this: Like Natural Law proponents, Originalists believe in an ultimate voice of Authority from which to craft, scrutinize, and adjudicate public policy that oversees the citizenry.  More important is this: In both cases, that Ultimate Authority is not available for consultation.  It is therefore gifted to the Natural Law apostles and Originalists themselves to discern for the rest of us precisely what this Authority dictates. Shockingly, it always turns out that what God or the Founders would have wanted dovetails exactly with what those reading their tealeaves wanted in the first place. Go figure.

That, to me, is modern-American Natural Law advocacy in a nutshell: The absolute authority of the Almighty, discerned by a few hand-selected high priests, translated into public policy and declared The Will of the People. Is it any wonder that such a setup lends itself to political pundits and Chief Justices promulgating who does and doesn’t qualify for basic civil rights?  Could you realistically ever assume that it wouldn’t?

Even our very own Founders, undeniably gifted and deserving of praise as they were, could not escape this trap — and neither can their most vocal defenders today.

Natural Law theory is one of those things that, like Marxism and Objectivism, works beautifully on paper.  The problem is, it also works pretty much the same as those other two in the real world.

UPDATE: 

So, Sam just sent me a link saying that Moore now claims he was taken out of context, and that he would never, ever, ever suggest that the US Constitution doesn’t apply equally to all religions, cross his heart and extra-double-secret pinky-swear. In fact, it turns out that he was really trying to say that he thinks all religions should be equally swell under the law!

And to that clarification, let me just say this: Bullshit.

When someone is arguing that all religions should be equal under the law, they don’t criticize Equal Protection as it’s practiced by our legal system and taught in our “secular” law schools as “politically correct” lies.  They don’t take the time to point out that the Constitution applies to those who believe in “the Creator,” and then take the time to explain how Buda and Mohammed were not the Creator.

They sure as Hell don’t say things like this:

The Islamic faith rejects our God and believes that the state must mandate the worship of its own god, Allah…

Our Constitution states, “Each House [of Congress] shall be the judge … of the qualifications of its own members.” Enough evidence exists for Congress to question [a Muslim’s] qualifications to be a member of Congress as well as his commitment to the Constitution in view of his apparent determination to embrace the Quran and an Islamic philosophy directly contrary to the principles of the Constitution.

Look, I’m as glad as anyone that Roy Moore recognizes that a Chief Justice shouldn’t be caught on tape saying what he did.  It would have been way worse had he doubled down and insisted what he had said previously was correct.  But he did say these things.

You can file that opinion under Ordinary Times v. Don’t Piss On My Leg And Tell Me It’s Raining.

[1] His refusal to comply would later cost him his seat on the court, but it also made Moore something of a national hero with the religious right.  WorldNetDaily hired him on as a regular columnist, and Moore became a staple guest on Fox News and conservative talk radio circuits.  After winning in the 2012 election he was reinstated as Chief Justice.
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