Unjust Laws: MLK and Contraceptive Mandates

Last week, in the guise of celebrating one man’s legacy, the nation took a day to solemnize our formal commitment to equality before the law. Blacks in this country have suffered much, finally gaining their freedom only to be hunted like animals in some places. I understand that the beneficiaries of and successors to the legacy of Martin Luther King, Jr. look to him as an icon, a martyr in the struggle for civil rights. I would be a sentimental fool if I pretended I was somehow part of that experience, as if I could somehow claim that legacy as my own. Society’s evils are society’s problems, so I do not mean to try to opt-out of this great American struggle. But my grandparents were not chased by hooded men on horseback, and if my parents were treated with suspicion, it was not for the color of their skin. So while I endorse and support equality for all as a Christian and an American conservative, I don’t pretend to “get it” like those in afflicted communities.

That does not mean the holiday is irrelevant to me. Martin Luther King, Jr. was a complex character, and I choose to celebrate him as a civic philosopher in the tradition of the Apostle Peter, Thomas More, Martin Luther (MLK’s namesake), and James Madison. The principles of justice and righteousness that King eloquently proclaimed are not unique to the race problem in the United States. They are universal. Here is a taste of King’s most famous letter that gives you an indication of why my choice is appropriate:

But more basically, I am in Birmingham because injustice is here. Just as the prophets of the eighth century B.C. left their villages and carried their “thus saith the Lord” far beyond the boundaries of their home towns, and just as the Apostle Paul left his village of Tarsus and carried the gospel of Jesus Christ to the far corners of the Greco Roman world, so am I compelled to carry the gospel of freedom beyond my own home town. Like Paul, I must constantly respond to the Macedonian call for aid.

One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws. I would agree with St. Augustine that ‘an unjust law is no law at all.’

Now, what is the difference between the two? How does one determine whether 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 law and natural law.

We should never forget that everything Adolf Hitler did in Germany was “legal” and everything the Hungarian freedom fighters did in Hungary was “illegal.” It was “illegal” to aid and comfort a Jew in Hitler’s Germany. Even so, I am sure that, had I lived in Germany at the time, I would have aided and comforted my Jewish brothers. If today I lived in a Communist country where certain principles dear to the Christian faith are suppressed, I would openly advocate disobeying that country’s antireligious laws.

King apparently wrote this, an impressive appeal to natural right, on the margins of a newspaper without any sources to consult. He must have been truly steeped in Christian philosophy and the natural law tradition, and he must have been a brilliant mind to weave together a complex argument like the one that emerged from the smuggled snippets of newspaper.

Now, consider two examples.

State authorities and sheriffs around the country have declared their refusal to enforce federal gun control provisions that violate the Second Amendment. If a government of limited powers enacts a law outside those powers, is that a “just” or an “unjust” law? Is the right to bear arms a natural right or a pragmatic license our framers thought wise to enshrine? Would it matter if the Second Amendment were repealed, or if it were re-enacted without the preamble? Regardless of your stance on firearms policy, consider this question through the lens King provides in his letter. (I am aware of the assertion that the Second Amendment was implemented to protect slavery. I am not convinced that this was its only purpose in light of the plethora of conflicting sentiments, nor does what those men may have thought bind our inquiry now. Only consider this: whom do you think Bull Connor would disarm?)

Fourty-four lawsuits have challenged the ill-famed contraceptive mandate issued under the authority of the Affordable Care Act. Now, this is the Evangelical Channel, so perhaps most of our readers find opposition to contraceptives to be a bit abstruse. Consider instead a mandate that employers pay for employees’ abortions, in the name of public health. Is there a clearer case of a “code that is out of harmony with the moral law”? Should subscribing to a particular vision of society be a precondition of doing business in the United States, from Bangor to San Jose?

What would Martin Luther King, Jr. say about a government that flippantly legislates outside of its defined authority? What would he say about laws that compel citizens to commit sinful acts?

To be sure, claiming “religious freedom!” is not a hall pass to skip laws you don’t like. Only lightly should one disobey the authorities, as Paul implies regarding “all authority.” Dr. King explains that one resisting an unjust law must be willing to accept the state’s punishment, and thus he made no whiny arguments about being stuck in a dark hole by racist pretenders. But what should be apparent from his life and death is that, once convicted of the unjustness of a law, the true evil lies in compliance.

About S. L. Whitesell

Lee studies law at the University of Pennsylvania. He and his wife Joanna live in Philadelphia.

  • Pingback: Martin Luther King Jr.: ‘I am happy to be the recipient of the Margaret Sanger Award’

  • S. L. Whitesell

    The trackback above calls out my post for attempting to “co-opt” MLK’s legacy. The post is here: http://www.patheos.com/blogs/slacktivist/2013/01/30/martin-luther-king-jr-i-am-happy-to-be-the-recipient-of-the-margaret-sanger-award/

    I thought I was sufficiently circumspect to foreclose this kind of response. For one, I started by acknowledging that I was not squarely within the stream of Rev. King’s legacy. I then pointed out that there is more to the man than his role as an advocate for racial equality, and I tried very hard not to denigrate that role.

    The fact remains that his Letter from a Birmingham Jail represents a masterful extemporaneous application of Christian natural law philosophy to the problem of unjust laws. My examples – constitutionally unwarranted federal laws and morally dubious contraceptive mandates – were invoked as thought experiments. While I obviously suggested my own answer, I did pose them as questions and I hoped that readers would think about, analogize, distinguish, these examples from the unjust laws that Rev. King was fighting.

    Slacktivist seems to answer this way: because MLK on other occasions and in different settings supported contraceptive access, or organizations that promoted it, that therefore his philosophy cannot apply to any scheme that also promotes contraceptive access. There are two mistakes here.

    First is a matter of simple rhetoric. King may have been inconsistent. As much as we admire him, we do not say that he was perfect. He may not have thought through the question of contraceptives and their effect on society, or he may have thought through the question and concluded that the public health benefits outweigh any negative consequences of divorcing sex from procreation. This is a reasonable conclusion.

    The second follows from the first. Even if Rev. King were in favor of universal access to contraceptives, free, cheap, and easy, does that tell us that he would approve all MEANS of so providing them? What would this Christian minister say about compelling another Christian sect to participate in a scheme it holds is morally repugnant and harmful to society? Is Slacktivist saying that King would conclude that such a coercive act is manifestly just, and therefore there is no grounds for opposing it?

    The objection to the contraceptive mandate is located there, in compelling Catholic business owners and Catholic institutions to provide contraceptives. Indeed, there would be no free exercise challenge if the government simply purchased the contraceptives and handed them out directly to the employees.

    Say what you want about the legal challenges, the wisdom of widespread contraceptive use, or Rev. King’s views on sexual politics. I freely admit – and did so originally – that we cannot appropriate this great Civil Rights leader to salve all our political angst. That does not excuse us from confronting the question of the unjustness of laws, a subject on which this Christian philosopher had much to say.

    I doubt anyone says we should not consider King’s philosophical writings except as they apply to the causes he championed.

  • http://www.christylambertson.com Christy

    I think Fred’s point was this: Dr. King was a pacifist – and NON-VIOLENT resistance to unjust laws was at the core of his philosophy. (He was strongly opposed to the Vietnam War, and nuclear weapons also, BTW.) He explicitly rejected any form of violent resistance to the Bull Connors of the world. He was also strongly in favor of everyone having widespread access to contraception and family planning services. We know this because he gave speeches and wrote essays stating his position, and of course, engaged in active resistance to laws he found unjust.

    The goal of the civil rights movement at that time was to get the federal government to pass and enforce laws that would force states and private businesses to do things they did not want to do – ie end segregation and stop discriminating against African-Americans. At that time, MANY Christians and churches thought that integration, inter-racial marriage, and King’s tactics were “morally repugnant and harmful to society” (which is why Dr. King wrote Letters from a Birmingham Jail to the many church leaders who wanted him to shut up. He was NOT popular among most white Christians when he was alive.) So, clearly, Dr. King had NO problem with the concept of the federal government forcing states (and the Christians in them) to do things they thought were morally wrong. That was, in fact, the POINT of much of his civil disobedience.

    You’re free to argue that gun control and the contraceptive mandate laws are unjust, of course, but it makes no sense at all to refer to Dr. King when you do so. It’s pretty clear where he would fall on those debates.

    You said, “I doubt anyone says we should not consider King’s philosophical writings except as they apply to the causes he championed.” True – but it’s a bit of a stretch to try to use his philosophical writings to support the exact opposite of what he believed.

  • S. L. Whitesell

    Do you think King had no more refined a view of Federalism than “I’m fine with the federal government forcing states to do things”? There is a strong argument that the Fourteenth Amendment explicitly gives the federal government power to forbid segregation. We can’t infer from that that King thought any action the federal government took, no matter how far outside its authority, was valid.

    Again, King may have had come to different policy conclusions about the wisdom of widespread contraceptive access. That does not automatically answer the question about whether all means by which to provide that are just.

    So the question remains. If you accept King’s arguments about the justness of laws and the proper reaction of a conscientious citizen, what are we do to in the face of laws we conclude are unjust? I did not mean to suggest that he would always share the conclusions of everyone on the first inquiry about the substantive content of justice.

    My invocation of King was explicitly for his philosophical writings and his excellent Christian reflection on civil disobedience. I can’t see why he isn’t relevant as a moral teacher more broadly.

  • David

    I think that some respondants may be missing the author’s point. Whitesell is not advocating for or against contraception, gun control, or anything else. Thi short essay challenges us to think , as Christians, about our responsibilities to be salt and light in a sinful world. Whitesell’s primary concern, if I read this essay correctly, is not whether it is a good idea for employers to provide (or pay to have provided) contraception to employees. Rather, it is a serious and important question: what does God require of me when my government requires me to do something (or provide something) when my faith informs me that to do so would be a sin. If man’s law and God’s demands that I live a holy life are irreconcilable, what is my duty? How Dr. King thought through the moral implications of contraception is interesting and useful to discuss, but it is not the subject of the original post. Choosing between what God commands and what the government demands when those demands are irreconcilable contradictory is. When forced to make such a choice, how should I make that choice? Shall I obey man, or obey God and patiently endure the consequences while praying for those who would do me harm?

  • http://worldsandtime.blogspot.com Spherical Time

    David: I think that some respondants may be missing the author’s point. Whitesell is not advocating for or against contraception, gun control, or anything else.

    I have to disagree with this premise. Whitesell is quite clearly labeling contraception as something that is so immoral that it is worth violating civil law due to one’s religious beliefs on the subject. That is, almost by definition, advocating against contraception.

    David: Rather, it is a serious and important question: what does God require of me when my government requires me to do something (or provide something) when my faith informs me that to do so would be a sin. If man’s law and God’s demands that I live a holy life are irreconcilable, what is my duty?

    There is a disconnect in my mind when Christians claim that God requires them to not give money to support a cause. One would think that Christian sects that believe in non-violence would have first brought these arguments against the military, but always before there’s been a distinction between paying your required taxes and actively supporting violence directly.

    Why doesn’t the same apply to health insurance for women? Why is it so different?

  • S. L. Whitesell

    I wasn’t labeling contraceptives that way, actually. I am not Roman Catholic and my personal view is that contraceptives are risky but not per se immoral. The problem, as David points out, is that these Catholic business owners DO think they are per se immoral.

    As to the second, I was not making that point at all. As I’ve said elsewhere, no one doubts that the government could spend tax funds to set up contraceptive dispensers on street corners. (I might have an enumerated power concern, but not a free exercise concern.) The problem is when Catholic business owners have to either procure a service that provides the product or provide the product directly. Stay tuned for my upcoming post on the latest “accommodation.”


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