Should Conservatives Practice Civil Disobedience?

As same-sex marriage opponents and religious activists feel increasingly beleaguered, some contemplate an unlikely method of resistance.

How should conservatives respond if they conclude that society is sinking into degeneracy all around them? There’s a traditional answer to that question: defiance. But as their sense of crisis mounts, some conservatives are pushing that defiance to a new level, and openly advocating civil disobedience. In the process, they are exposing both tensions within their own movement, and the limits of civil disobedience as a tactic.
In a letter to Henry Regnery, publisher of then-forthcoming The Conservative Mind, Russell Kirk made his case for defiance as the quintessential act of conservative valor. “By opposing what seems inevitable, often enough we find that its force is not irresistible; and at the worst, we have the satisfaction of the heroic attitude,” he wrote. Kirk, the modern American right’s intellectual godfather, was not indulging romantic daydreams. His intended title for the book was The Conservative Rout, and his wager was on the cosmic significance of defying society's evident fate.
More than half a century on, neither two terms of Reagan nor three terms of Bushes have lessened the sense among many conservatives that the rout goes on. Some on the Christian right now push the “Benedict option”—a retreat from majoritarian politics and into monastic sanctuary, escaping from degeneracy instead of opposing it. But the defiant attitude remains, even among those who place heaven’s justice above human justice. A host of conservatives insist that they must stand and fight, even if the cause seems hopeless, even if the deck is stacked.
In the latest act of defiance, Mike Huckabee and Rick Santorum have joined a host of religious heavyweights in putting their name to a Pledge in Solidarity to Defend Marriage. Prepared for the eventuality of a Supreme Court decision that enshrines a right to gay marriage, the Pledge promises what co-drafter Mat Staver of Liberty Counsel flatly calls “civil disobedience.”
“I’m calling for people to not recognize the legitimacy of that ruling because it’s not grounded in the Rule of Law,” he told Fox News’s Todd Starnes. “They need to resist that ruling in every way possible. In a peaceful way—they need to resist it as much as Martin Luther King, Jr. resisted unjust laws in his time.”
Unfortunately for Staver and company, their conservative invocation of King comes at an especially awkward time. At another bloody crossroads of religion and politics, the tactic has been tried and found wanting. Pamela Geller, of the American Freedom Defense Initiative, drew comparisons to King from conservatives in the wake of her “draw Mohammed contest”—an unpopular, albeit legal, event that attracted murderous opposition. The Wall Street Journal’s James Taranto asserted that freedom-lovers must sometimes provoke oppression in order to fight it.
But in the wake of the Baltimore riots, and the long train of racial unrest that precedes it, many Americans are unwilling to let conservatives invoke King’s legacy. On the right, King has become a symbol of how to fight oppression without, well, fighting—despite King’s famous dictum that a riot is the language of the unheard. Liberals incensed by this conservative appropriation of King rallied around the ironic words of Donald Rumsfeld, who described widespread looting in post-Saddam Iraq as the product of “pent-up feelings” resulting “from decades of repression”—indeed, “part of the price of getting from a repressed regime to freedom.”
For conservatives, the paradox is as simple as it is frightening. They not only sense that public opinion is shifting decisively against them on matters of religion and race; they grasp that a central part of this shift involves denying conservatives the benefits extended to American minorities. Conservatives, it seems, do not have the right to claim oppression. Unable to become “just another minority,” or to win the sympathy and special treatment that the mainstream confers on oppressed and marginalized groups, conservatives are beginning to feel that even if civil disobedience isn’t the best option, it may be their last option.
Yet unless civil disobedience can transcend ideology to transform how bystanders see the world, the strategy loses not only its savor but its power.
In that way, it would be no surprise to see conservatives recast the case for civil disobedience in less tribal terms than race or religion allow. And sure enough, Charles Murray—“professional controversy magnet at the American Enterprise Institute,” as one reviewer called him—has set aside the racial focus that charged The Bell Curve and Coming Apart to call for a kind of civil disobedience that all Americans can love, on paper, at least.
In his new book By the People, Murray filters Kirk’s rather stodgy romanticism through the kind of enterprise populism that’s so trendy today. Instead of invoking Charles I or the Sassenach, Murray appeals to Americans’ frustrated belief that, right now, the burdensome venality of their bureaucratic government leaves them too ineffective and too tightly constrained.
But in framing the case for disobedience as a matter of fighting regulations gone wild, Murray runs up against a difficult challenge. The illegitimate government Murray presents is a creation of the left, through and through. By his logic, to oppose it by breaking its laws is to be a conservative. Regardless of how many are swayed on the right by that intellectual sales pitch, it will fail as a social movement if it is seen as a merely conservative undertaking. Civil disobedience cannot succeed if it is regarded by the broader public as the ideological act of a minority.
For conservatives, therefore, successful civil disobedience demands that they step outside their conservative skin—just as whites engaging in civil disobedience must reach beyond their whiteness, and Christians their Christianity. Yet none of these markers of identity can be, or should be, abandoned or wiped away. That is why civil disobedience is such tricky business. It must somehow appeal to a public sense that our government has gone wrong—not just in the aggregate, but so holistically and comprehensively that neither experts, attorneys, nor activists can break it down into distinct problems that policy, or money, can fix.
“Conservative civil disobedience” fails this test. Opposing perceived oppression in the name of humanity might not. Americans are deeply divided on the question of what even counts as oppression. Civil disobedience depends on invoking a legitimate form of freedom that the law cannot supply but only safeguard—from those who govern as well as from those who are goverened. In that sense, conservatives' anxious predicament reflects one that confronts all Americans. Without a shared understanding of the nature of American freedom, any attempt to use civil disobedience to resist a particular set of policies will come off as just another expression of the thirst for political rule.