Trumping Religion: The New Christian Right, the Free Speech Clause, and the Courts
200
Trumping Religion: The New Christian Right, the Free Speech Clause, and the Courts
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Overview
Trumping Religion provides a detailed analysis of the five major public-interest law firms that have litigated religion cases in the federal courts between 1980 and 2000. Allied with several highly vocal, evangelical ministries, such as those of Jerry Falwell and Pat Robinson, these legal organizations argue that religious expression is a form of protected speech and thereby gain a greater latitude of interpretation in the courts. The long-term agenda of the New Christian Right as illuminated by this study is to shape church-state jurisprudence in a way that permits free course for the Christian gospel.
Steven P. Brown presents his research and conclusions from a balanced viewpoint. In filling a distinct void in the literature, this book will be of considerable interest to political scientists, legal scholars, law schools and seminaries, and anyone concerned with the intersection of religion and judicial politics.
Product Details
| ISBN-13: | 9780817351403 |
|---|---|
| Publisher: | University of Alabama Press |
| Publication date: | 06/15/2004 |
| Edition description: | First Edition, First Edition |
| Pages: | 200 |
| Product dimensions: | 6.00(w) x 9.00(h) x 0.60(d) |
About the Author
Read an Excerpt
Trumping Religion
The New Christian Right, the Free Speech Clause, and the Courts
By Steven P. Brown
The University of Alabama Press
Copyright © 2002 The University of Alabama PressAll rights reserved.
ISBN: 978-0-8173-5140-3
CHAPTER 1
The Bible and the Bench
An Introduction to New Christian, Right Activism in the Courts
Because so many people find the gospel annoying, those in powerful positions have no qualms about making evangelism illegal because it strikes them as rude and obnoxious. Consequently, it's become increasingly difficult for Christians to share that message with the freedom they have traditionally had. ... [I]t is clear that there is much work to be done in ensuring that the First Amendment rights of Christians are protected at home, at school, in the workplace, and in the public arena.
Jay Alan Sekulow, chief counsel, American Center for Law and Justice, 2000
"1996 will be a pivotal year for your country, your community and your family. Now more than ever Christians need to act out their faith in the public arena." With that call to action, Coral Ridge Ministries summoned concerned Christians to Fort Lauderdale, Florida, to take part in its annual Reclaiming America for Christ conference. The convention promised participants a diverse assortment of workshops, including "What Politicians Really Think about the 'Religious Right,'" "How to Get Involved in Elective Politics and Win," "Why Public Education Threatens Religious Liberty," and "Why Today's Supreme Court Is at Odds with the Founding Fathers." After touting the expected presence of several noted conservative leaders, the 1996 conference brochure concluded with this reflection: "For more than thirty years, America has undergone a sustained and wide-ranging attack on the godly foundation which made our nation a well-ordered bastion of liberty, peace, and prosperity. That attack is finally meeting resistance. More and more Christians are awakening to their duty to defend faith and freedom in an increasingly hostile, secular society. Now more than ever, they have discovered the need to reclaim America."
Although the Coral Ridge convention annually attracts thousands of community and university Christian activists, its "reclaim America" theme has become something of a rallying cry for a much broader social and political movement popularly known as the "Religious Right," "Christian Right," or, as used here, "New Christian Right." Coming to prominence in the late 1970s after decades of largely self-imposed political exile, conservative Christian activism has engendered public controversy like few other special interest movements organized during the past quarter century.
Although a concrete definition of the New Christian Right remains elusive, the movement is strongly rooted in the conservative evangelical Protestant tradition. Evangelical Protestantism is highly decentralized, embracing not only large denominations, such as the Southern Baptist Convention, but also thousands of independent Baptist, Reformed, Pentecostal, Churches of Christ, and nondenominational evangelical churches, among others. Those within this diffuse grouping affirm the inerrancy of the Bible, the divinity of Jesus Christ, the need for personal conversion, and the necessity of religious activism or "witnessing" to bring about the conversion of others.
Geographically, evangelical Protestantism remains strongest in the southeastern United States, but more than one-quarter of all Americans belong to evangelical churches, making that religious tradition the largest in the nation with slightly more adherents than either mainline Protestantism or Roman Catholicism. Perhaps more important, in the last thirty years the number of Americans belonging to evangelical Protestant churches has increased while the membership of most other denominations has declined.
As a whole, evangelical Protestants tend to be much more religiously committed to weekly and daily religious practices than those associated with other religious traditions. By linking their political and social activism to moral values, New Christian Right organizations are able to take advantage of this strong sense of religious commitment among evangelical Protestants to develop and mobilize support for their causes and/or political candidates.
Although evangelical Protestants serve as its primary base, the New Christian Right is also ecumenically fluid, drawing support from Roman Catholics, Mormons, mainline Protestants, and others who, despite considerable theological differences with evangelicals, may at times sustain various aspects of the movement's conservative social and political agenda. It is not surprising then — given the shifting nature of issue-dependent support — that it is virtually impossible to determine the actual size of the New Christian Right constituency.
In fact, because it is far more nebulous than commonly perceived, the New Christian Right cannot rightly claim the status of political monolith so often imputed to it by both critics and supporters. The movement can be more accurately characterized as a vast mosaic of interests dominated by a handful of influential leaders and a growing number of special interest organizations that seek to convert the socially conservative views of their followers into political activism.
The vast array of subunits that make up the New Christian Right rely on the political and financial mobilization of their grassroots constituencies to influence electoral outcomes and public policymaking decisions. Perhaps the best known among these organizations is the Christian Coalition of America, which claims some 1.5 million members. Other politically prominent organizations include the American Family Association, which looks to its 600,000 members to combat sex and violence in the media. Focus on the Family, with its strong stance against homosexual rights and feminist theory, is reportedly backed by a membership of some 2 million Americans. With 250,000 members, the Family Research Council lobbies Congress and executive-branch agencies on behalf of a wide range of conservative themes related to marriage and family. And Concerned Women for America focuses the efforts of its 600,000 members on opposing gay-rights legislation and other issues it believes are detrimental to women and families.
Successful efforts by these and similar groups to mobilize their supporters have contributed to victories at the state and local level where candidates and issues were backed by New Christian Right organizations, provided important early support for a presidential run by one of their own (Pat Robertson in 1988), and led to unprecedented success for conservative Christian candidates in the 1994 congressional races. Now viewed as the Republican Party's most dependable and active constituency, the New Christian Right and its evangelical Protestant base also provided critical support to George W. Bush in both the Republican primaries and general election during the 2000 presidential campaign.
But serious questions linger about the ultimate political relevance of the New Christian Right. Some observers contend that its inability to generate support for its policy preferences outside its core constituency is indicative of the movement's generally limited appeal and uncertain political future. Recent studies now contradict earlier research regarding the impact of religious conservatives on the presidential elections of 1980 and 1984, demonstrating that such influence was considerably less than what was believed at the time. And the marginal success of New Christian Right–supported candidates and issues in the late 1990s appears to underscore the observation that the movement occupies little more than a "small but prominent niche in national politics."
Dissatisfied with both the electoral and policy results of their role in American political life during the past quarter century, even some New Christian Right leaders have begun to voice doubt as to the efficacy of their continued reliance on the political process as a means of implementing the conservative social vision necessary for reclaiming America. Paul Weyrich, a founding member of the Moral Majority (the pioneering organization that linked religious conservatives with Republican political activism in the 1980s) and current president of the conservative Free Congress Foundation, stunned his supporters in February 1999 by announcing, "I no longer believe that there is a moral majority. I believe that we probably have lost the culture war. That doesn't mean the war is not going to continue and that it isn't going to be fought on other fronts. But in terms of society in general, we have lost."
Echoing Weyrich's message just a few months later were conservative syndicated columnist Cal Thomas and Ed Dobson, both former officers in the Moral Majority, who argued that the involvement of religious conservatives in the political arena had had a corruptive influence on the church while accomplishing relatively little in terms of social change. "The history of the past twenty years," they admitted, "shows that while conservative Christian activists were effectively promising to end the moral slide, stop the gay rights agenda, and do other wondrous things, we never did achieve them. We did not achieve them because we lacked the power." Without the power to alter a society they viewed as badly flawed, Thomas and Dobson conceded that they "no longer believe[d] that our individual or collective cultural problems can be altered exclusively, or even mainly, through the political process."
Although the widespread media coverage of these statements was rife with speculation about the political future of Christian conservatives, Weyrich, Thomas, and Dobson were hardly the first to express dissatisfaction with the results of the New Christian Right's efforts to influence policy within the electoral branches of government. In a May 1996 newsletter, the president of the Alliance Defense Fund, an organization that finances conservative legal challenges, described the limitations of the New Christian Right's traditional dependence on electoral politics and elected officials for policy change:
In this highly charged election year, I hope we all keep one thing in mind. ... While we can bring about quick fixes in the voting booth, it is in the courts that we will bring about the type of change that transcends all generations. Think about that! Six presidents have come and gone, but Roe v. Wade has remained the law of the land. That's why the national legal precedents we can achieve to protect religious freedom, the traditional family, and the sanctity of life are going to touch our lives much longer than any political candidate or officeholder can.
The Alliance Defense Fund is just one of several New Christian Right organizations that have recently come into existence with the intention of using the courts as the next battleground of conservative Christian activism. For these groups, the law represents a new opportunity to spiritually rejuvenate America without screening candidates, canvassing for votes, or lobbying Capitol Hill. With a cadre of well-trained lawyers, the courtroom activism of liberal public interest groups before it, and a remarkably successful legal strategy of its own, the New Christian Right now looks to the courts to recognize and legitimate the ideals and policies its supporters see as essential components of an America "reclaimed."
The New Christian Right's increased emphasis on the judiciary has not gone unnoticed by its critics, but the academic community has given it relatively little attention. Some observers of the movement in the late 1980s noted that the use of the judicial branch as an avenue of political access had not been overlooked by the New Christian Right, but it "was considered more of an adversary than an opportunity." They predicted that the expense of courtroom activism would cause the New Christian Right to redirect its efforts to grassroots political mobilization on state and local issues. Other scholars acknowledged the importance of litigation to the New Christian Right but concluded that the limited success of its agenda in the courts would inevitably lead it back to electoral politics. True to these observations, there are currently several notable organizations within the New Christian Right such as the Family Research Council and American Family Association whose litigation efforts, either in their own name or through direct affiliates (such as the latter's Center for Law and Policy), do little more than supplement the organizations' primary focus on the executive and legislative branches.
The New Christian Right groups that have been the most active in the courts, however, and that have had the greatest influence on the law generally are not subsidiaries created merely to complement a parent institution's existing political efforts. The sole purpose for which they were founded is litigation. Some have had substantial backing from leading organizations within the New Christian Right; others began as part-time enterprises originating in private commercial law firms. But all were initially founded with the intention of using the courts to create policy change, independent of efforts taking place in the other branches of government. And with increasing budgets and a growing body of legal precedent on their side, there is little evidence to suggest that these New Christian Right lawyers will abandon the courtroom anytime soon.
The New Christian Right's entry into public interest law is of twofold importance. First, because it involves few actors and little in the way of political mobilization, litigation represents a significant change from traditional forms of New Christian Right political activism. While subsequent chapters will address the several motivating factors behind the adoption of a judicial strategy, the formation of New Christian Right public interest law firms can be viewed, in part, as a belated response to the conspicuous absence of religious conservatives from the courtrooms of the past.
In the early 1980s, the evangelical philosopher Francis Schaeffer questioned, "[W]here were the Christian lawyers during the crucial shift from forty years ago to just a few years ago? ... Within our lifetime the great shifts in law have taken place. Now that this has happened we can say, surely the Christian lawyers should have seen the changes taking place and stood on the wall and blown the trumpets loud and clear." Unwilling to default to their liberal counterparts in the courtroom any longer, New Christian Right public interest law firms came to view litigation as a necessary tool in preventing further encroachment on the values, traditions, and policies they held dear.
Second, the New Christian Right's adoption of a judicial strategy reflects an acknowledgment that judges can rule for, as easily as against, religious conservatives. Rather than simply react to cases brought by opposing liberal interest groups, New Christian Right lawyers realized that they too could initiate lawsuits to impel favorable policy change. Thus, in addition to defending its values from further erosion, the New Christian Right came to appreciate the offensive component of its legal activism in the courts as well.
Given the broad spectrum of issues pursued by New Christian Right organizations within the electoral arena, it is not surprising to learn that the movement's public interest law efforts are similarly diverse. Among other things, New Christian Right lawyers have actively litigated on behalf of abortion clinic protestors, antigay policies, homeschooling parents, and a number of "family values" initiatives. In the Supreme Court's 1999 — 2000 term alone, the New Christian Right firms that make up the focus of this study participated in cases dealing with Nebraska's ban on partial birth abortions (Stenberg v. Carhart), the Boy Scouts of America's decision to ban homosexuals from its organization (BSA and Monmouth Council v. Dale), the use of student activity fees to fund unpopular campus groups (Board of Regents of the University of Wisconsin System v. Southworth), third-party visitation privileges versus parental rights (Troxel v. Granville), municipal bans on nude dancing (City of Erie, et al. v. Pap's A.M., tdba "Kandyland"), restrictions on abortion clinic protesting (Hill v. Colorado), governmental assistance to religious schools (Mitchell v. Helms), student-led prayers before high school football games (Santa Fe Independent School District v. Doe), as well as a host of criminal procedure cases.
(Continues...)
Excerpted from Trumping Religion by Steven P. Brown. Copyright © 2002 The University of Alabama Press. Excerpted by permission of The University of Alabama Press.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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Table of Contents
Contents
Acknowledgments,1. The Bible and the Bench: An Introduction to New Christian Right Activism in the Courts,
2. A Perfect State of Society: The Emergence of Conservative Christian Public Interest Law,
3. One in Purpose: The Firms That Litigate the New Christian Right Agenda,
4. "Incremental Pragmatism": Legal Strategies of the New Christian Right,
5. Scaling the Establishment Wall: Free Speech and the Supreme Court's Religion Cases,
6. Pathbreakers and Gatekeepers: The Lower Federal Court Response to the New Christian Right,
7. Money, Media, and (Not So) Gentle Persuasion: New Christian Right Lawyers Outside the Courtroom,
8. Legal Right or Gospel Tool? The Past and Future of the New Christian Right's Free Speech Strategy in the Courts,
Appendix: Table of Cases,
Notes,
Bibliography,
Index,