The Heart of Liberty and the Right to Feed One’s Family

In Planned Parenthood v. Casey, Justice Anthony Kennedy mused, “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Apparently, Dallas district court Judge Eric Moyé never read that case.

During a May 5, 2020 hearing, Moyé sentenced salon owner Shelley Luther to seven days in jail and fined her $7,000 for daring to operate her business in defiance of shelter-in-place restrictions enacted in response to the outbreak of COVID-19.

While castigating Luther during sentencing, Moyé unwittingly echoed Justice Kennedy’s oft-repeated words, when he insisted that society cannot function “where one’s own belief in a concept of liberty permits [others] to flaunt … disdain for the rulings of duly elected officials.”

In her defense, Luther insisted she needed to work to feed her children and pay her delinquent mortgage. She assured the judge that she had taken all reasonable precautions to ensure the safety of her customers and coworkers. Earlier, she told officials that her salon was safer for people to visit than Walmart or Home Depot, where people roam freely.

Judge Moyé would hear none of it. Apparently that highfalutin heart-of-liberty, define-one’s-own-concept-of-existence thing Justice Kennedy espoused protects abortion, but all bets are off when it comes to mothers who need to coif a few heads of hair to buy groceries.

Perhaps even more outrageous than the sentence itself was the Faustian bargain Moyé dangled in front of Luther during the hearing. The judge enticed Luther by saying she had the “keys to the jail” and invited her to “utilize them now.” To avoid jail time, she merely needed to admit that:

  • Her actions were “selfish” and put her “own interests ahead of those of the community”;
  • She had “disrespect for the executive orders of the state, the orders of the county and this city”;
  • She sees “the errors of [her] ways”;
  • She owed an apology to “the officials whom [she] disrespected”;
  • She understands “the proper way in an ordered society to engage concerns . . . is to hire a lawyer and advocate for [sic] change”;
  • This isn’t the way citizens should behave.

Moyé’s offer gave away the game. The goal was to make an example of Luther. Either she would be locked up, or she would be forced to wear her Scarlet Letter for all to see. And there was one final condition Judge Moyé sought to impose: Luther would have to agree to cease operation of her salon and “not reopen until further orders of the government” permit her to do so.

There was no evidence in the hearing on the matter of whether the state’s indefinite lockdown order, which is preventing millions of people from providing for their families, remains necessary at this point. There was no effort to find a middle ground that might protect people while permitting Luther to earn an honest living.

That was never the goal. Moyé’s hearing was about putting a head on a pike. To avoid the clink, Luther would be required to take a long “walk of shame” and promise never to open her business again unless and until the government said she may.

What is happening in this country, when judges think they have this kind of power? How does a judge come to believe this is the role of government?

It is particularly sad and ironic that Judge Moyé, who is African American and has a long history of advocating civil rights, would callously disparage Luther’s act of civil disobedience. While the import of this episode cannot be compared to the long struggle for equal rights for African Americans in this country, we would do well to remember the words of Martin Luther King after he was criticized for his “willingness to break laws.” In his letter from the Birmingham jail, King explained:

One may ask: “How can you advocate breaking some laws and obeying others?” The answer lies in the fact that there are two types of laws: just and unjust. . . .  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.”

Now, what is the difference between the two? How does one determine whether a law is just or unjust? A just law is a man-made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law. To put it in the terms of St. Thomas Aquinas: An unjust law is a human law that is not rooted in eternal law and natural law.

It is highly questionable at this point whether these strict, seemingly indefinite shelter-in-place laws pass constitutional muster as the least restrictive means to achieve a compelling state interest. But leaving aside the constitutional issues, the reality is that this mother believed she must work to put food on her table and keep a roof over her family’s head.

The duty to care for one’s family is precisely the type of moral law that underlies all civil law.

An unreasonable regulation that indefinitely prevents people from caring for their families is unjust. It is, in the words of Martin Luther King, “no law at all.” And a concept of liberty that denies people the freedom to pursue their livelihood to support their families is no liberty at all.

About Thomas K Hockel

Thomas K. Hockel is an experienced litigator and trial attorney in California. He has been practicing law in federal and state courts for over 25 years. His interests include political theory, philosophy, and constitutional jurisprudence.

Photo: Jason Redmond/AFP via Getty Images

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