There are more similiarities between Roy Moore and Martin Luther King, Jr. than one might think.

There has been a lot of argument over whether Judge Moore is acting in the
tradition of Martin Luther King, Jr. Moore’s supporters compare his
disobedience to the federal court order to King’s defiance of laws he
deemed unjust. The guardians of King’s legacy, of course, oppose the
comparisons. Moore’s opponents prefer to invoke the image of Alabama
Governor George Wallace defying desegregation orders.

To stop the dangerous comparisons between Moore and King, National Public
Radio aired an interview with Ozell Sutton on August 22. Mr. Sutton was
one of nine students who integrated Central High school in Little Rock,
and later he took part in civil rights demonstrations. Sutton said that
Moore and his followers were in a completely different situation than King
and his followers. Interviewer Madeleine Brand suggested that Moore’s
supporters “see themselves as fighting for a higher law when the laws they
see as they’re written are immoral. Isn’t that what you were trying to do
back in the 1960s?”

Said Sutton, “we [the civil rights people in the 1960s] were fighting for
a higher law, but we were also fighting for the laws of these United
States. We[] were opposing the laws of Southern states, but not opposing
the laws of the Constitution of the United States.”

Brand said: “But one precept in the Constitution has [sic] the right, the
freedom of religion.”

Sutton answered: “Well, I’m not here to argue the notion of the freedom of
religion as they are practicing it. I am personally a religious person,
but what I’m trying to say is, there’s no comparison of what’s taking
place in Alabama to the civil rights struggle.” Later, Sutton added: “And
they are not fighting for civil rights, they’re fighting for whatever
concept they have about religion.”

As a matter of fact, by Sutton’s own standards, there are a great many
parallels between King’s civil – rights campaign and the campaign of Moore
and his followers for a public acknowledgement of God. For one thing,
King, a Protestant minister, frequently proclaimed that his campaign was
based on “whatever concept [he] may have about religion.” Even more
pertinent is King’s attitude toward authority. As Sutton rightly pointed
out, King was simultaneously defying unjust laws and standing up for the
U. S. Constitution, which made many of these unjust laws unconstitutional.

There is an even closer parallel between King and Moore on the issue of
obedience to court orders. To see how apt this comparison is, let us take
ourselves back to 1963, when King and other activists were leading
demonstrations against Jim Crow segregation in Birmingham, Alabama. Most
Americans know by now that King wrote a “Letter from Birmingham Jail.”
That letter has attained the status of secular scripture in this country
for its eloquent defense of King’s strategy in the civil – rights
struggle, including his willingness to lovingly and nonviolently disobey
unjust laws and take the consequences. What not many Americans know are
the precise circumstances in which King ended up in the “Birmingham Jail”
in which he (ostensibly) wrote his famous epistle. King was in jail for
doing exactly what Roy Moore is castigated for doing – disobeying a court
order which he deemed to be unconstitutional.

King and his colleagues wanted to demonstrate in the streets and other
public places of Birmingham. They wished to demonstrate on the weekend of
April 12 to 14, which the Western liturgical calendar considers to be
Easter. It was symbolically important, of course, that these
anti-segregation demonstrations be held on the Western version of Easter
weekend. During these demonstrations, King and his allies planned to march
in the streets and otherwise indicate opposition to Jim Crow.

A couple of days before the weekend, Birmingham officials went to an
Alabama Circuit Court judge and asked for an injunction. The judge issued
an order which, in pertinent part, prohibited King and his allies from
violating the Birmingham parade ordinance. This ordinance prohibited
anyone from marching on the city streets without a permit from the
municipal government, which was at the time under the control of a nice
fellow named Eugene. Last name Connor, nickname “Bull.” Under Connor’s
influence, the city government had a practice of refusing parade permits
to civil rights activists.

The Circuit Court’s injunction was temporary, meaning that it was only in
force until a full hearing could be held, at which time the court would
decide whether to make the injunction permanent. The temporary injunction
would be in force over the weekend, however, meaning that King and his
associates were required to obey the Birmingham parade ordinance over the
weekend. Since the ordinance required a permit for demonstrating, and
since the city government wasn’t about to issue any permits to people like
King, obeying the injunction would mean calling off the weekend’s
demonstrations.

King, et. al., decided to go ahead and have the demonstrations despite the
injunction. King got arrested and spent some time in jail. While in
prison, he signed off on a statement explaining to the public why he had
chosen to disobey the court order. This “Letter from Birmingham Jail” was
supposedly a response to an earlier public statement by local white
religious leaders, issued on April 12.

The white ministers had reiterated an earlier letter which urged obedience
to court decisions. The earlier letter had been addressed to white
political leaders, urging them to obey the pro-integration decisions of
the federal courts. By implication, King and his allies were now being
urged to obey court orders, as well. This was why the white ministers, in
their April 12 letter, reminded King of what they had earlier said to the
Alabama politicians: “We expressed understanding that honest convictions
in racial matters could be properly be pursued in the courts, but urged
that decisions of those courts should in the meantime be peacefully
obeyed.” Thus, a court order to limit civil-rights demonstrations should
be obeyed just as much as a court order to end segregation.

In his “Letter from Birmingham Jail,” King took up the white ministers’
claim that all court orders had to be obeyed. Distinguishing between
“just” and “unjust” laws, King said that laws requiring integration were
just and ought to be complied with, and that laws limiting civil-rights
demonstrations were (at least in this case) unjust and ought to be defied.
One of the reasons the court order against him was unjust, King indicated,
was that the order was unconstitutional. “Now there is nothing wrong with
having an ordinance which requires a permit for a parade, but when the
ordinance is used to preserve segregation and to deny citizens the First
Amendment privilege of peaceful assembly and peaceful protest, then it
becomes unjust.”

(King also said: “If I lived in a communist country today where certain
principles dear to the Christian faith are suppressed, I believe I would
openly advocate disobeying these anti-religious laws” (quotations are from
the earliest available versions of King’s *Letter*). This particular
remark hasn’t been cited very often by Judge Moore’s opponents)).

Thus, in the course of defending the proposition that it was unjust to
require him to obey the Birmingham parade ordinance, King indicated that
the ordinance violated the U. S. Constitution. In other words, King did
not necessarily see a conflict between the rule of law and his defiance of
this particular court order. This point was reiterated when King and the
other civil-rights leaders were brought to trial for contempt of the
Circuit Court’s anti-demonstration order. King’s lawyers argued that
Birmingham’s parade ordinance violated the First Amendment, and that no
court had the power to order King to obey an unconstitutional law. The
court convicted King and the others anyway. Also, some of King’s
associates were convicted independently of violating the city’s parade
ordinance. All these convictions were eventually appealed to the U. S.
Supreme Court.

The U. S. Supreme Court later agreed that Birmingham’s parade ordinance
was unconstitutional. The decision came when the demonstrators who had
been convicted of violating the parade ordinance in April, 1963 appealed
their convictions. Under the U. S. Constitution, said the Supreme Court,
state and local governments could not require demonstrators to get parade
permits unless there were strict safeguards in the law to prevent
arbitrary discrimination. In 1963, however, the Birmingham parade
ordinance had no safeguards to prevent arbitrariness in the granting of
permits. Therefore, said the Court without dissent, no-one could
constitutionally be punished for parading without a permit in Birmingham
in 1963 (see *Shuttlesworth v. Birmingham,* 394 U. S. 147, 1969).

Or could they? Shortly before striking down Birmingham’s parade ordinance
in the *Shuttlesworth* case, the Court said that King and the others could
constitutionally be punished for contempt of court for violating the
Circuit Court’s order. The Circuit Court, remember, had required King and
his cohorts to obey the Birmingham parade ordinance. If the parade
ordinance was unconstitutional, how come King could be sent to prison for
violating it? Because, explained the U. S. Supremes, the ordinance had
been incorporated in a court order, and court orders had to be obeyed even
if they were wrong. With only a few exceptions, the only way to challenge
an unconstitutional court order is to ask the court to change its mind, or
to appeal the court’s order to a higher court. King could have asked to
Circuit Court, or an appeals court, to lift the injunction. Instead of
doing this, King had gotten impatient and simply disobeyed the court’s
order. If only he had waited long enough, the Alabama courts, or the U. S.
Supreme Court, would have decided that the injunction was unconstitutional
and would have overturned it. Then King would have been free to hold his
demonstration. Since King had decided to jump the gun and disobey the
injunction, rather than wait patiently for the courts to deal with the
situation, he had shown contempt for judicial authority and could
therefore be legally punished (see *Walker v. Birmingham,* 388 U. S. 307
(1967)).

To recap: The Supreme Court *overturned* the convictions of those
demonstrators who had been convicted of violating the Birmingham parade
ordinance, on the ground that the ordinance was unconstitutional. At the
same time, the Supreme Court *upheld* the convictions of those
demonstrators who had been convicted of disobeying a court order requiring
compliance with that very same unconstitutional ordinance.

Four justices of the U. S. Supreme Court dissented from the decision that
upheld King’s contempt-of-court conviction. These dissenters were Chief
Justice Earl Warren, Justice Abe Fortas, Justice William Brennan, and
Justice William Douglas. These four are heroes to modern liberal lawyers,
the kind of lawyers who like to sue people like Judge Moore. The
dissenting Justices thought that the court order which King had disobeyed
was unconstitutional because it required King to comply with an
unconstitutional ordinance. If the ordinance was unconstitutional, then
the court order based on the ordinance was unconstitutional too, said the
dissenters (see *Walker,* at 324-349).

The dissenters were troubled by the fact that the injunction against King
and the others was *ex parte* - that is, issued without notice to the
defendants. The dissenting opinions, however, did not limit their
consideration to this issue. From the point of view of the dissenters, it
was wrong to expect people to obey a court order requiring them to give up
their First Amendment rights. Even if King had been warned that Birmingham
officials were seeking an injunction, it’s unlikely that he would have
been able to stop the Circuit Court from issuing one, given the hostility
of many Alabama judges of that day to troublemakers like King (comparable
to the hostility felt by many federal judges to legal claims like Roy
Moore’s).

They key point of the dissenting opinions is that if someone thinks is
charged with violation of a court order, he should have the right to argue
that the order violates his First Amendment rights. The majority of the
Justices of the U. S. Supreme Court said otherwise: A person charged with
violating an unconstitutional court order isn’t allowed to argue, in his
defense, that the order is unconstitutional.

The U. S. Supreme Court upheld King’s conviction in 1967, in the context
of a nationwide breakdown of law and order, including some very nasty
riots which went way beyond King’s program of loving, nonviolent civil
disobedience. The Court’s majority was understandably nervous that, if it
endorsed a constitutional right to disobey court orders, it might
contribute to the prevailing anarchy and violence. This aspect of the case
was acknowledged by Justice Brennan in his dissenting opinion: “We cannot
permit fears of ‘riots’ and ‘civil disobedience’ generated by slogans like
‘Black Power’ to divert our attention from what is here at stake.” The
Court’s majority clearly thought that the “issues” at stake involved real
riots, not “riots” in quotation marks. Since the state governments, under
the federal Constitution, bear the primary, front-line responsibility for
upholding law and order, the Court’s willingness to uphold King’s
contempt-of-court conviction is, under the circumstances, defensible.

But that’s not how right – thinking people saw the decision. President
Lyndon Johnson’s Justice Department asked the Supreme Court to rule in
favor of King and the others. The Justice Department attorneys making this
request included Thurgood Marshall, then the Solicitor General, and John
Doar, known for his support of civil rights. King himself, understandably,
reproached the Supremes for upholding his conviction: “I am sad that the
Supreme Court could not uphold the rights of individual citizens in the
face of deliberate use of oppression.”

Are there good grounds for comparison between King’s case and Moore’s?
There are. King claimed that he was entitled under the U. S. Constitution,
to defy an unjust court order that violated the First Amendment. Moore
claims that he has the right to defy an unjust court order that violates
the Tenth Amendment. The Tenth Amendment, which is just as much a part of
the Bill of Rights as the First Amendment, says: “The powers not delegated
to the United States by the Constitution, nor prohibited by it to the
States, are reserved to the States respectively, or to the people.” Since
the power to decide what displays shall be placed in public buildings has
not been delegated to the United States by the Constitution, that power is
reserved to the states.

King disobeyed a court order requiring him to give up his First Amendment
rights. Moore disobeyed a court order requiring him to give up his Tenth
Amendment prerogatives as a state official. Valid comparison? I think so.

For Further Reading:

S. Jonathan Bass. *Blessed Are the Peacemakers: Martin Luther King, Jr.,
Eight White Religious Leaders, and the “Letter from Birmingham Jail.”*
Baton Rouge: Louisiana State University Press, 2001.