Civil Disobedience vs. Lawlessness

Rob Tisinai

July 26th, 2013

In Pennsylvania, as you may know, County Clerk Bruce Hanes has issued marriage licenses to same-sex couples, despite the state’s ban on same-sex marriage. Here’s the reaction from NOM, called The Lawlessness of Gay Marriage Activists is on Full Display:

In Pennsylvania, Montgomery County’s Register of Wills (the person who issues marriage licenses) suddenly decided he can ignore Pennsylvania law and give marriage licenses to same-sex couples. The guy claims he did it only after reading Justice Kennedy’s opinion in the Windsor case striking down part of the federal DOMA law, and concluded that gay couples should have the right to marry even though Pennsylvania law defines marriage as the union of one man and one woman. Kudos to the Office of General Counsel for the Governor for insisting “Individual elected officials cannot pick and choose which laws to enforce,” as their press secretary Nils Hagen-Frederiksen wrote in a released statement. “All officials are constitutionally required to administer and enforce the laws that are enacted by the Legislature.”

The irony is so bright it burns my eyes. NOM has built fundraising efforts on the notion that Town Clerks in New York have the right to “pick and choose which laws to enforce” and to refuse to issue marriage licenses to same-sex couples, as an exercise of their religious freedom.

NOM’s hypocrisy will surprise only those who haven’t been paying attention. But what about our own hypocrisy when we denounce the New York Town Clerks while praising Montgomery County’s Bruce Hanes? Is there a difference?

I think there is.

Civil disobedience has a long and proud history in the US. In its best form, though, it’s not a mere refusal to obey a law. It involves a person publicly breaking an unjust law and accepting the consequences precisely in order to force an examination of that law in the public eye, and if necessary, in court. This is not “lawlessness.” It’s a deliberate attempt to invoke our legal system.

That’s happening right now in Montgomery County.  It’s not quite what happened in New York with those Town Clerks. They didn’t do anything to force a re-examination of marriage equality. In fact, they were willing to direct same-sex applicants other Clerks. Unlike Bruce Hanes, they did not say the marriage equality law was invalid; they merely claimed that they personally did not have to obey it.

Now, that’s lawlessness.

Perhaps this isn’t entirely fair. Those Clerks might say they weren’t protesting marriage equality per se, but the laws that force them to sign documents for marriages they personally deem invalid. It’s hard to believe their sincerity, though. They’d have to argue that religious freedom means that government officials can demand you pass their personal religious test before they’ll help you, and that, of course, is the opposite of religious freedom.

I see another difference between New York and Montgomery County, though: Civil disobedience doesn’t usually involve someone using their power to victimize citizens. Civil disobedience doesn’t much involve victims at all — the lack of victims is a sign that the law being disobeyed is unjust! It’s easy to identify by name the victims of the New York Town Clerks. The victims in Montgomery County, not so much.

Before I close, I want to point out something NOM founder Robert George published two days ago on the question of religious freedom:

Fifty years ago, Martin Luther King, Jr., responded in his Letter from Birmingham Jail to those who criticized his program of civil disobedience as mere willful law-breaking:

I would be the first to advocate obeying just laws. 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.”

King turned not inward to his own feelings of being aggrieved by the law, not to the intuitions of his autonomous self, and not even to a claim of his own rights. Instead he turned to “moral responsibility”—to obligation, to duty. He, like Newman, understood this as a duty to principles of justice we did not create, but to which we must respond. As the Declaration of Independence teaches us, prior to any laws made by men are the immutable standards of justice—standards by which we judge whether the laws are just and can rightfully command our obedience.

Robert George, fierce opponent of marriage equality, goes on to identify those standards:

These standards, of the equal dignity of all human persons, of their equal freedom, and of the accountability of government to the people…

As I said above: The irony is so bright it burns.


July 26th, 2013

Interesting point. I’m still uneasy about what’s happening in Pennsylvania, partly because it’s too *close* to what NOM wants clerks in equality states to do, and partly because it leaves things so murky.


July 26th, 2013

Yesterday morning my partner, Kevin, and I made the trip out to Norristown, the seat of Montgomery County, for our license. I can attest to this being pure civil disobedience. The clerk who did our paperwork was diligent, double and triple checking every input into the system. She was also very clearly happy to be doing this. We duly swore that we hadn’t lied to her and weren’t drunk or high. Then she printed us a marriage license, gave us specific instructions on how to finalize the marriage on Sunday and sent us on our way. If anything dampened the mood it was the relative trickle of applications. I believe there have been a total of 12 or so between Wednesday & Thursday. The most painful part of the experience was the track maintenance on the train line forcing me onto a shuttle bus for half the trip into work.

Sir Andrew

July 26th, 2013

I agree with Hyhybt. Plus, I’m not sure that this is actually going to help. Rather, it might hinder ongoing efforts to effect marriage equality.

Of course, with the state law denying the right for gays to marry, this is not an actual marriage. The license has as much legal effect as two six-year-olds playing house and declaring that they are husband and wife in their pretend mimicking of their parents.

Lindoro Almaviva

July 26th, 2013

Interesting point. I’m still uneasy about what’s happening in Pennsylvania, partly because it’s too *close* to what NOM wants clerks in equality states to do, and partly because it leaves things so murky.

At first I was of the same opinion, but then I remembered that NOM themselves called for town clerks to disobey the law, and when they did, THEY put those people in a pedestal for all the world to see. After that, I am not in the least bothered by it. If it is good enough for NOM to actively recruit people to break the law, then someone following their conciseness has nothing to fear; at least in my opinion.

I believe that at this point, every time NOM puts out the “lawlessness” meme, we should just use their owen words, their own advertisements and their own memes and then ask “Well, isn’t this what you were calling for? Why are you protesting now? People are answering YOUR call.”


July 26th, 2013


But, of course, our argument against NOM–in both New York and in California–has been that the clerks do not have the right to unilaterally interpret their state’s marriage law, and instead they have to follow the law.

I suppose we can embrace NOM’s approach–that clerks should follow their consciences when we agree with the clerks, and should follow the law when we don’t agree with them. I don’t think that’s a good approach, and until last week, I think virtually every supporter of ssm didn’t think it was a good approach. Maybe Pennsylvania will be the first state in US history to allow a county clerk rather than the legislature or courts to set the state’s marriage policy, but I doubt it.


July 26th, 2013

Rob, thanks for your eloquence. My comments yesterday were clumsy and I am very glad to see my points stated much more effectively.

Christopher in Alask

July 27th, 2013

I think it is easy to miss the point. It is going to be a positive movement forward even if the courts nullify them (which I wouldn’t be so sure they will); but rather that now there are legal documents that must be disputed. There is a record. And therefore there will be a legal process.

The post above said it oh so well here:

“Civil disobedience has a long and proud history in the US. In its best form, though, it’s not a mere refusal to obey a law. It involves a person publicly breaking an unjust law and accepting the consequences precisely in order to force an examination of that law in the public eye, and if necessary, in court. This is not “lawlessness.” It’s a deliberate attempt to invoke our legal system.”

In Pennsylvania, it’s official. The legal system is duly invoked.


July 27th, 2013

Sir Andrew: the test, unless there’s a court case first, is in whether the marriage licenses are honored. What happens when half of such a couple goes to change their insurance accordingly? What happens when one of them dies (hopefully not for a long while yet)?

Adrienne Critcher

July 29th, 2013

A good way to ascertain if a town clerk’s refusal to issue a marriage license to a gay couple is really based on religious objections is to determine if those same clerks refuse to issue marriage licenses to divorced people who wish to remarry. Matt. 19:9 is specific that once divorced, if you remarry, then you are living in a perpetual state of adultery (exception: your spouse was unfaithful). Of course a separate issue is whether government officials should follow the law or their religion, but I would imagine that these town clerks are daily violating their so-called religious beliefs by issuing marriage licenses for 2nd (and 3rd and 4th, etc.) marriages.

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