Ordering Subordinates to Engage in Civil Disobedience

Cardinal Roger Mahony of the archdiocese of Los Angeles has poured new wine into the old wineskin of civil disobedience. If a proposed immigration bill becomes law, he announced he will instruct the priests in his archdiocese to disobey the law and face the prospect of criminal prosecution.

He clarified his position in an op-ed in the New York Times. Mahony had this to say:

“I’ve received a lot of criticism for stating last month that I would instruct the priests of my archdiocese to disobey a proposed law that would subject them, as well as other church and humanitarian workers, to criminal penalties. The proposed Border Protection, Antiterrorism and Illegal Immigration Control bill, which was approved by the House of Representatives in December and is expected to be taken up by the Senate next week, would among other things subject to five years in prison anyone who “assists” an undocumented immigrant “to remain in the United States.” Some supporters of the bill have even accused the church of encouraging illegal immigration and meddling in politics. But I stand by my statement. Part of the mission of the Roman Catholic Church is to help people in need. It is our Gospel mandate, in which Christ instructs us to clothe the naked, feed the poor and welcome the stranger. Indeed, the Catholic Church, through Catholic Charities agencies around the country, is one of the largest nonprofit providers of social services in the nation, serving both citizens and immigrants. Providing humanitarian assistance to those in need should not be made a crime, as the House bill decrees. As written, the proposed law is so broad that it would criminalize even minor acts of mercy like offering a meal or administering first aid. Current law does not require social service agencies to obtain evidence of legal status before rendering aid, nor should it. Denying aid to a fellow human being violates a law with a higher authority than Congress — the law of God.”

Mahony has further indicated that he is willing to go to jail for his stance. The position articulated by Cardinal Mahony has faint echoes of Martin Luther King’s letter from a Birmingham jail, which I have discussed here. King argued that some laws are unjust because they violate higher moral law. Segregation laws fit the bill. But there is a critical distinction between King’s position and Mahony’s. King sought to justify his own decision to obey the higher law of God in the face of an unjust human law. And he fully accepted that he should be punished for such a choice.

Cardinal Mahony is instructing his subordinates to violate the proposed law and face criminal prosecution. I think there is a critical distinction between one’s own choice to engage in civil disobedience, and a demand that one’s subordinates do so. What is a priest in Los Angeles to do in response to such an instruction? Obey the constable and suffer the job consequences? Obey the cardinal and suffer the criminal consequences? If Mahony’s reading of the bill is correct, the poor priests are damned if they do and damned if they don’t.

The best defense of Mahony’s public challenge is that it constitutes preemptive civil disobedience. As I discussed in my previoust post, King argued that we should disobey the law and suffer the consequences in the hopes of pricking the public conscience. This in turn would lead to legislative corrections and more just laws. Arguably Cardinal Mahony is trying to proactively prick the public conscience now, before the bill becomes law. That may be a good thing for a moral leader, if he is convinced the bill is truly unjust. But it seems quite wrong to foist the obligation to engage in civil disobedience on one’s subordinates. At least I doubt Martin Luther King would have demanded as much.

Of course, I have my own views of the morality of the bill based on a careful reading of the language. I rather doubt that H.R. 4437 says what Mahony thinks it says. It does say that whoever “assists, encourages, directs, or induces a person to reside in or remain in the United States … knowing or in reckless disregard of the fact that such person is an [illegal] alien” may face criminal prosecution. But of course the current law restricts the provision of services to illegal aliens, but it has been held to apply to smugglers and human traffickers, not social service providers. I doubt that the new law would proscribe such services as well. I seriously doubt the law will punish the priest who offers communion or presents a cup of cold water to the least of these. And even if it did, there is this thing called the First Amendment. There is an intermediate law that stands between congressional law and God’s law. If necessary that law could be called upon to ensure that justice is done.