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Supreme Court Justices: Arbiters of Religious Tradition? (Book Notes: God vs. the Gavel)

By July 20, 2006

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Many conservatives criticize Supreme Court decisions which they regard as being insufficiently based upon the 'plain text' of the Constitution - decisions which, for example, draw upon sociology, international law, or modern social developments. Rarely do we hear conservatives complain about those who argue that decisions should ignore the text of the Constitution and rely upon religious law. God vs. the Gavel: Religion and the Rule of Law

Sadly, there are people who argue for precisely that. When they see a Supreme Court decision they donít like, they criticize it not because fails to uphold the Constitution, but because if fails to uphold some religious belief or tradition ó as if the Supreme Court were a Supreme Theological Court. In God vs. the Gavel: Religion and the Rule of Law, Marci A. Hamilton quotes an article from Harold O.J. Brown in Christianity Today in which he complains about the 2003 Supreme Court decision Lawrence v. Texas, holding that an anti-sodomy law was unconstitutional:

What were those justices thinking? The man who wrote the majority opinion is a Roman Catholic. Does he not know that his church, his spiritual leader the pope, the Bible, and all of the church fathers up to the present, consider the behavior that he now protects an abominable sin, an act against nature? Was it a trivial matter to award the highest courtís protection to activities against nature and the laws of God and the church? Do the two Jewish justices not know that their Torah rejects sodomy as an abomination? And the two women on the Court: By what perverted logic do they mock the role that God and nature have given to their sex in conjunction with the male-to bring children into the world in a matrimonial union...

A professor of theology at Reformed Theological Seminary in Charlotte, Harold O.J. Brown also wrote in the original piece:

[T]he United States Supreme Court ... did not merely forget God: It turned the nation into a pagan state-not the people, of course, not all the lesser structures and institutions such as churches, schools, and businesses great and small, but the nation. The Supreme Court, in declaring all sodomy laws unconstitutional, has in effect declared the nation pagan-not in so many words, of course, but in terms that explicitly repudiate historic Christianity, the Bible, the Torah, and the principles of natural law that guided us so long.

Brownís words are a bit extreme; his perspective, however, is not the least bit extreme ó on the contrary, it meshes perfectly with the general perspective adopted by the Christian Right. It is taken as a matter of fact that American government exists in order to glorify God and to promote Godís will. This means, necessarily, that all legitimate laws must be consistent with Godís laws; any laws or court decisions which conflict with Godís laws are illegitimate and incorrect.

Brown does not attack the Supreme Courtís decision here because itís inconsistent with the Constitution ó itís likely that Brown has no legal arguments for his disagreement with the decision. Ultimately, Brownís objection to the decision is based solely on his own interpretation of what he believes is the will and laws of his God ó and therefore Brown takes it for granted that the Supreme Court exists to interpret the ďconstitutionalityĒ of laws on the basis of whether they are consistent with Godís will and Godís laws.

Thus according to people like Harold O.J. Brown, the Supreme Court exists not as a legal body or arbiter of the meaning of the Constitution, but as a theological body and as an arbiter of religious laws. This makes it pretty unequivocal that people like Brown desire that America be a theocracy ó they donít believe that American government exists on the basis of ďwe the peopleĒ or that the people are sovereign. Instead, government exists on the basis of Godís will and God is sovereign (which ultimately means that those who assume the authority to interpret Godís will for the people are the real sovereigns).

This is the real test for whether a person believes in liberal democracy or is actually a theocrat in disguise. A liberal democrat will respect and support the right of the people to pass laws which directly reject and contradict what that person believes are the will or laws of their God. They may disagree with such a decision and make arguments against it, but they will not insist that the only legitimate laws are the ones which are consistent with what their God wants. If, however, they claim that a court decision or legislative proposal is wrong simply because it conflicts with what a church, religious tradition, or religious scripture say, then like Harold O.J. Brown they are anti-democratic.


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