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Austin Cline

Judicial Inquisition: Trying to End Secular Laws

By April 14, 2005

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The Christian Right is making a major push against an independent judiciary in America. They object to how judges refuse to rule contrary to the Constitution and in favor of theocratic principles. The Christian Right has significant control or influence over most aspects of American culture and politics, but that hasn't translated into enough victories in the courts for their taste.

The Christian Science Monitor reports:

The coalition - called the Judeo- Christian Council for Constitutional Restoration - is unabashedly pressing for radical steps. Congress has the power to undertake these, it says, given its authority to establish federal courts under Article III of the US Constitution. Proposed steps include withdrawing the courts' jurisdiction over all cases related to the acknowledgment of God or to the protection of marriage. They would extend to impeaching judges that substitute "their own views for the original meaning of the Constitution," or base a decision on foreign law; and to reducing or eliminating funding for the federal courts when judges "overstep their constitutional authority."

The one point on which conservatives and liberals tend to agree is that in a fight over the judiciary the stakes are huge. "The future of the judiciary is perhaps the most important domestic priority facing the country at this time," says Ralph Neas, president of People for the American Way. ... "This president has the executive branch, the Republican Party has the legislative branch, and they aren't satisfied; they want the crown jewel of our democracy, and that is a fair and independent judiciary," says Nan Aron, head of the Alliance for Justice.

The Federalist party "accused [Thomas] Jefferson of being the anti-Christ ... and a secularist bent on destruction of the necessary religious foundations of law," Dr. Witte says. And the Republican party "accused [John] Adams of being a Puritan pope and religious tyrant bent on subjecting the whole nation to his suffocatingly narrow beliefs." In the 19th century, the Supreme Court had relatively few religious cases on its docket. But clashes between Protestants and Catholics kept the church-state separation debate simmering. In the 20th century, religion cases grew dramatically, as religious pluralism increased. The US became more litigious and groups such as the ACLU and American Jewish Congress began challenging traditional practices.

Americans United says:

Notre Dame Law School Professor Gerard V. Bradley, writing for Catholic.net under the headline "One Cheer for Inquisitions," maintained that the so-called "Myth of the Inquisition" was actually a Protestant tool to "turn people against revealed religion and, especially, the Roman Catholic Church." Bradley's piece argued that today's federal courts are an Inquisition of sorts, or at least one similar to the supporters of the "Myth of the Inquisition." The federal courts, he insists, regularly overturn popular laws because those laws do not have a secular basis. He wrote that the "norm of invalidating laws which lack a secular purpose is entirely the product of judicial usurpations dating from 1947." (Bradley apparently means Everson v. Board of Education, the landmark Supreme Court decision upholding church-state separation.)

Bradley lambastes the Supreme Court for seeing itself as "the bulwark of minority interests, over and against what 'the people' prefer." He attacks the justices' 2003 ruling in Lawrence v. Texas, which struck down a Texas sodomy law, calling it "the classic circumstance of modern judicial intervention." The Notre Dame law professor, who the Religion News Service credited with helping to write FMA, later argues in his posted testimony that judicial review is not "explicit in the Constitution," and definitely not the type of constitutional review that occurred in Lawrence.

What Bradley is saying here accurately reflects what many in the Christian Right truly believe. They don't think that laws need a secular basis — they think it's just fine if laws are based upon the doctrines of some specific religion. Many are even arguing that "judicial review" of popular laws is invalid. They are confusing majoritarian rule with democracy... or perhaps they know the difference but don't care because they aren't actually interested in democracy.

Phyllis Schlafly writes:

Congress should withdraw jurisdiction from the federal courts over the Pledge of Allegiance, the Ten Commandments, and the Defense of Marriage Act. Two bills to do this (the Akin Bill and the Hostettler Bill) easily passed the House last fall but were ignored by the Senate, and now it is time to make them law.

Congress should withdraw jurisdiction over court challenges to the Boy Scouts of America, a federally chartered organization, which the American Civil Liberties Union is currently trying to ban from public schools. The ACLU is seeking activist judges who will rule it a violation of the First Amendment for the Boy Scouts to pledge allegiance to God and country and commit to keeping themselves "morally straight."

Congress should repeal the 1976 law that permits activist judges to grant lavish attorney's fees to the ACLU when it succeeds in banning the Boy Scouts, the Ten Commandments or a cross that has existed on public property for decades.

Both Houses of Congress should hold hearings about remedies for supremacist decisions. Congress should bring defiant judges before the American people to answer questions about their worst rulings.

Schlafly wouldn't argue for withdrawing jurisdiction over these cases if she thought that the judges ruled incorrectly and that different judges would reach a more correct conclusion. Withdrawing jurisdiction only makes sense if there is no way that even the most conservative judge will rule in favor of the Christian Right. In a sense, then, Schlafly is admitting that judges are ruling correctly based upon what the Constitution says and wants to change the rules in order to make sure that doesn’t happen anymore.

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