Moral duty and the rule of law.

• Author: Pryor, Jr., William H.
• Position: Symposium: Law and Morality

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. (20) That advertisement created a furor in the Senate and a lively debate in national newspapers and magazines. (21)

My second experience came at the end of that same summer when Roy Moore, who was then the Chief Justice of Alabama, refused to obey an injunction of a federal district court that required the removal of a monument of the Ten Commandments from the rotunda of the Alabama Judicial Building. (22) As attorney general, I publicly disagreed with Chief Justice Moore and assisted the associate justices of the Supreme Court of Alabama in ensuring compliance with the injunction. (23) After the Alabama Judicial Inquiry Commission then filed charges of misconduct against Chief Justice Moore, I personally prosecuted the charges in the Alabama Court of the Judiciary, which unanimously granted my request to remove Chief Justice Moore from his judicial office. (24)

Throughout these experiences, my perspective on the potential conflict of legal and moral duties has been that I should follow the example of Saint Thomas More. My Catholic faith is the foundation of my worldview, and my judicial duty is governed, from beginning to end, by the law. Faith properly informs the religious lawyer or judge, and morality is not in tension with fidelity to the law.

I will first address my perspective about the controversy that affected my judicial nomination: the role of religion in judging. Religious faith properly informs me, as a judge, in my fidelity to my judicial duty in at least four ways: in my understanding of my oath of office, in my moral duty to obey lawful authority, in my responsibility to work diligently, and in my responsibility to work honestly. Each of these ways is motivational; that is, each concerns the judge's duty to perform his work well. None involves using religious doctrine to decide a case in conflict with the law.

The most fundamental way that faith properly matters to me as a judge is in my understanding of my judicial oath of office. In Article VI of the Constitution, the Framers required that every officer of our government "be bound by Oath or Affirmation, to support th[e] Constitution." (25) In the next part of that clause, they provided that "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States." (26) The Framers thought that the particular religious beliefs of the judge should not matter, but that it was crucial for the judge to have his conscience--as informed by those beliefs--bound by the Constitution.

Many of the states had different rules. Delaware, for example, in article 22 of its Constitution of 1776, required officers to "profess faith in God the Father, and in Jesus Christ His only Son, and in the Holy Ghost, one God, blessed for evermore," and to "acknowledge the holy scriptures of the Old and New Testament to be given by divine inspiration." (27) Vermont, in chapter 2, section 9, of its Constitution of 1777, required legislators to declare, "I do believe in one God, the Creator and Governor of the universe, the rewarder of the good and punisher of the wicked. And I do acknowledge the scriptures of the old and new testament to be given by divine inspiration, and own and profess the protestant religion." (28) I am especially grateful that last line of the Vermont Constitution did not become part of the Federal Constitution.

During the ratification process, some Americans objected to the ban on religious tests, as many Protestants feared the election or appointment of Catholics to federal office. James Iredell, a delegate to the North Carolina convention, provided my favorite rejoinder to these objections when he rose to defend the ban on religious tests on July 30, 1787. His words were especially memorable for Catholics. Iredell said,

I met by accident with a pamphlet this morning, in which the author states as a very serious danger, that the Pope of Rome might be elected President. I confess this never struck me before, and if the author had read all the qualifications of a President, perhaps his fears might have been quieted. No man but a native, and who has resided fourteen years in America, can be chosen President. I know not all the qualifications for a Pope, but I believe he must be taken from the college of Cardinals, and probably there are many previous steps necessary before he arrives at this dignity. A native of America must have very singular good fortune, who after residing fourteen years in his own country, should go to Europe, enter into Romish orders, obtain the promotion of Cardinal, afterwards that of Pope, and at length be so much in the confidence of his own country, as to be elected President. It would be still more extraordinary if he should give up his Popedom for our Presidency. Sir, it is impossible to treat such idle fears with any degree of gravity. (29) "The Framers' general understanding was that proscribing religious tests did not necessarily remove the religious significance of the general oath." (30) James Madison, the Father of the Constitution, explained in a letter to Edmond Pendleton dated October 28, 1787, that an oath should make a religious test unnecessary. Madison wrote,

Is not a religious test as far as it is necessary, or would operate, involved in the oath itself? If the person swearing believes in the...