February 22, 2006

Court Intrigue

1506 page8 capHOUGH WE MAY BE LOATH TO admit it, the culture war in the United States is entirely real--in government, in education, in the arts--and each day?s headlines report on the skirmishes. As with any enduring conflict, the struggle has multiple fronts. It is far more than a simple shouting match between secular and religious visions, as might be deduced from a quick survey of the evening cable TV news shows. The growing tension between religion and secularism has revealed deep fault lines in the national self-perception. Seismic shifts that occurred long ago are now often painfully revealed.

No longer is the United States, practically speaking, an Anglo-Protestant nation, as it commonly defined itself for the first 150 years of its existence. Diverse people groups and other religious views, naturally enough, clamor for attention. Overall, a secular mind-set usually prevails. And far too many Americans have forgotten what history they learned in school and the basis of their system of government.

Two Cities, Two Visions
I began to write this article while on a Liberty speaking appointment in Las Vegas, Nevada. Here, hotels and casinos dominate the space with neon intensity. Clustered on the famous ?Strip,? they run the gamut of extravagant display. There is an oversized reincarnation of ancient Rome; a gigantic pyramid pulsating with laser lights; and the much-advertised Syn City, which suggests that there may be some truth in advertising, after all. All of this is overlaid with billboarding that beckons to sensuality. One has to wonder whether this city is an anomaly or just an amplification of twenty-first-century American culture.

It does strike me as a package at great odds with the Christian nation ideal.

Driving through the downtown area of this Vanity Fair, I was listening to a CD of Nightsounds, a Christian radio program I have appreciated since college days. The host recounted what he believed to be the essential Christian character of America--at once evoking its mythic holiness and bemoaning its present secularity.

Then, following the usual format of the show, he played a musical item to underscore the point. The words of the beautiful song resonated with me and underscored the gulf between glowing Vegas and that shining city set upon a hill: ?I will cry mercy for this land, O God. I will cry justice for this land, O God. . . . So I cry mercy for this nation. Let us see healing for the people.?

1506 page8I can say ?Amen? to that song and those sentiments.

I can also say that it troubles me mightily to hear so many evangelical Christians crying out for the removal of those they term activist judges, particularly those on the Supreme Court, as a way of bringing back ?justice for this land.? It is too simplistic, for starters, to lay all the ills of our society at the feet of a few judges, who at worst may be responding to some of the new ?norms? of society. It is also destructive of our shared national norms of true justice to try to place individual judges on the bench who are committed to turning the law toward their ideological goals.

The Supreme Court of the United States is, after the legislature and the executive office of the president, the third branch of government. The founders of the United States and the framers of the Constitution designed a system of checks and balances for each element of government power.

Supreme Court justices have life tenure to remove them from political vulnerability. Their point of reference is to the Constitution. As all of us in religious liberty work know too well, some of the Court?s decisions in recent decades have been good and some have been not so good. But even when we are most frustrated with a given decision, you will not find Adventist religious liberty leaders advocating the impeachment of justices--as some religious factions and politicians have--nor will you find us encouraging those who would try to stack the Court with ideologues. We know too well the meaning of Jesus? call to separate the business of heaven from Caesar?s. Church pioneer and prophetic messenger Ellen White was clear that party politics have no place in church business. What we can do is explain the relevant issues to our fellow members even as we speak to those in power about our religious liberty concerns.

A Study in Contrasts
When explaining the changing stance of the Supreme Court on religious liberty matters, there is no sharper contrast than two statements by justices made 38 years apart. The first, by Justice Hugo Black for the majority in the 1947 case of Everson v. Board of Education, has become a landmark in American jurisprudence. The second was in a dissenting opinion by then associate justice William H. Rehnquist to the decision in Wallace v. Jaffree (1985).

?The First Amendment has erected a wall between church and state,? wrote Justice Black. ?That wall must be kept high and impregnable. We could not approve the slightest breach.?

?The wall of separation between church and state is a metaphor based on bad history, a metaphor which has proved useless as a guide to judging. It should be frankly and explicitly abandoned,? Rehnquist opined. He of course went on to serve as a very influential chief justice from 1986 until his death in 2005.

The easy abandonment of church/state separation so unambiguously suggested by Justice Rehnquist both underscores the very real shift in the Supreme Court and casts doubt on the charge that we are currently in the grip of ?judicial activism.? The reality is that the Court has been on a swing to the philosophical right for decades. Of the current Court, only two were appointed by Democrats (Ruth Bader Ginsburg and Stephen G. Breyer). The late chief justice was nominated by President Nixon in 1971, and all the other six were nominated by Republican presidents. The confirmation of Samuel Alito to replace Sandra Day O?Connor only underscores the reality that a large majority of the Court was appointed by conservative chief executives.

Of course, as we are seeing played out before our eyes, there is more to the current situation than the simple spectacle of liberals versus conservatives. What is increasingly at play is a right-wing Christian moral agenda that has gained political traction in the past two decades. The movement?s litmus issue has become abortion and the goal of overturning what it believes was a fundamentally flawed Supreme Court decision in the 1973 Roe v. Wade case. Its current sense of outrage and urgency, I believe, emerges directly from another hot-button issue--the Lawrence v. Texas decision of 2003, which unleashed the move toward gay marriage, even though the Court?s point and preoccupation in that case seem to have been issues of privacy.

The current battle over the composition of the Supreme Court is openly about these two main issues, and a more recent flap over the limits of executive authority. It seems beyond question that Adventists, in common with all Christians who take the Bible seriously, would welcome a national shift away from abortion. Similarly, most Adventists believe that the gay rights agenda, in addition to its opposition to biblical norms, has gone beyond the bounds of civil society and threatens marriage and the morality of the nation. If the issues were only these, Adventists might take some comfort in the remaking of the Supreme Court.

Is the Court Hostile to Faith?
But the real issue is deeper than this. Its narrative is found in the succession of news-making cases in the past decade. Spurred on by the public efforts of right-wing advocacy groups, many Christians have been incited by tales of the Court?s antipathy to religion. Evidence for this alleged antipathy is found in events such as last year?s Ten Commandments cases. In those the Court restricted state display of religious symbols that were intended to make a religious statement, and allowed others in a generalized setting.

While the Supreme Court tried to dodge the bullet on the recent Pledge of Allegiance case by denying legal standing to the plaintiff standing, critics of the courts saw further evidence of undue deference to secularism.

The underlying issue is a broad-based move by Christian activists to insert religion into government and its activities. The driving issue is a sense of frustration that the courts and the Court have not acted vigorously enough to accomplish this.

1506 page8In grilling now Chief Justice Roberts at his confirmation hearings last September, the senators got few specific answers. But Justice Roberts did indicate that he has questions about whether the Constitution grants a general right of privacy--virtually a code answer that tips toward the conservative view on abortion and gay rights. He also expressed a view similar to that of likely Court nominee Alberto Gonzales, who in his confirmation hearings for attorney general was quite specific in stating that, in certain instances, the executive power is not bound by the laws of Congress. There are profound implications for personal and religious liberty in that view--a perspective shared by new Supreme Court justice Samuel Alito.

What we know best about both Chief Justice Roberts and Samuel Alito is that they have made it clear that they think the nation has gone too far in separating church and state. Anyone who has listened to voluble Justice Antonin Scalia or read his writings knows that he is of a similar mind. It is also a matter of public record that Justice Clarence Thomas would bring the roles of church and state much closer.1 Four out of nine is a significant voting block on such an elemental aspect of religious freedom.

It may not be coincidental that all four are also Roman Catholics (as is Justice Anthony Kennedy). By history and doctrine, that church has strikingly different views on church/state relations than those of the Framers of the U.S. Constitution. That same Constitution forbids any religious test for public office, and Adventists dare not object to Supreme Court justices belonging to any faith, or to none. But it would be blindness to dismiss the likelihood of views shaped by a particular faith background, or to suggest that their chosen church would show greater restraint than many of its hierarchy did in the last presidential election. Senator John Kerry, Democratic candidate for president, and other Catholic senators were threatened with church sanction by some bishops for their social views, particularly on abortion, that were at variance with Catholic teaching. Some bishops said overtly that Kerry, as a Catholic, would have to obey church dictates, amid regrets that this was not required of John Kennedy (1961-1963), the first Roman Catholic elected to the presidency.

Adventists and the Two-horned Beast
Seventh-day Adventists have historically held a very high view of the United States of America, not just because it was the cradle of early Adventism, but because we see it as fulfilling a very special role in history. ?One nation and only one,? in the words of Ellen White, fits the description of the lamblike beast of Revelation 13.2 The United States, Adventists believe, is a nation designed to nurture and protect religious freedom. Ellen White and other Adventist pioneers saw in the two horns of the lamblike beast a figure for the dual principles that made the United States what it was: Protestantism and Republicanism. Of course they meant the principles of Republicanism--a charter from the people with no king--and not any political party. And they meant the ideals of Protestantism--most particularly the deeply held Protestant convictions on separation of church and state--not an exclusionary view of any religion. As they correctly saw, a separation of church and state is the most benign civil environment for any and all religions to flourish.

The First Amendment to the U.S. Constitution declares that ?Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.? That?s about it for religion in the Constitution, other than the previously mentioned prohibition on religious tests for public office.

The two halves of the First Amendment are expressed as the ?establishment? and ?free exercise? issues. The first relates to government support for religion as an institution; the second to individual practice of religion. There is an apparent contradiction in the present state of religious liberty that derives from how the Supreme Court treats these two issues.

Justice Rehnquist?s dismissal of the ?wall of separation?--Thomas Jefferson?s term--is not an anomaly today. Many political and religious conservatives now buy into it--some more than others.3 Sadly, some on the Religious Right are openly derisive of the metaphor, and call it unconstitutional.

But religious practice is not yet seriously threatened in the United States, in spite of the clamor on the Internet and by advocacy groups. The Supreme Court has held a fairly consistent line in protecting religious speech, practice, and assembly. In spite of the clamor over school prayer, the Court has affirmed the right of individual students to share their faith, that religious clubs have as much right to meet on school property as secular groups, and the right to witness door-to-door.

Establishment issues have, both by court action and inaction, revealed a distinctly careless regard for the old wall. With Lemon v. Kurtzman, a 1971 case disallowing a state?s reimbursement of certain educational cost in church schools, the Supreme Court effectively set up stringent guidelines to avoid what it termed ?excessive entanglement.? The resulting ?Lemon test? stood for some time as the benchmark. It has now effectively been put aside by a series of decisions approving government vouchers, funds, and loans to religious schools and students enrolled there. In fact, unless a church school is foolish enough to admit to being ?pervasively sectarian,? the money can flow. And by so far disregarding the Bush administration?s ?Faith-based initiative? (a well-intentioned program that nonetheless transgresses constitutional norms) and accepting no legal challenges to that mandate, the Court has effectively endorsed it. Justices Thomas and Scalia are on record in favor of approving funding for church schools and programs, and we can reasonably expect the two newest justices to share their views.

In The Great Controversy Ellen White looks ahead to a day when ?the leading churches of the United States, uniting upon such points of doctrine as are held by them in common, shall influence the state to enforce their decrees and to sustain their institutions.?4 Surely that day is not so unthinkable anymore. The common points of doctrine have been consolidated by four decades of ecumenism: the moral issues agenda has only a few salient points.

Adventists can take no lasting comfort in the fact that the status quo seems relatively benign. Since 9/11 we have seen how quickly the status quo can change. Many changes, such as those that came to be codified in the controversial U.S.A. Patriot Act, were already in process before 9/11, all with the result of expanding government power and control over the individual.

The Days Ahead
The potential danger to religious freedom from the Supreme Court is just that--mostly potential. But that does not make the dangers any less dangerous in view of some of the trends of the Court, the aims of those pressuring the Court, and the philosophical views held by some of the newer members of the Court.

Justice Scalia has famously said that he does not see any constitutional problem with Sunday ?blue laws.? He also has no problem with the state disallowing what it would define as irreligion. He sees the state as only neutral between religious factions but not neutral to religion. Scalia is not, as some would claim, merely an entertaining wit with law training. He is a brilliant and determined ideological conservative whose views have gained increasing respect in the past decade. Nor is he a lone maverick: the nickname ?Scalito,? facetiously given to ideological soul mate Samuel Alito, should illustrate that. In common with several others, Scalia holds to a view of the U.S. Constitution that invokes the mind-set of the document?s Framers. Under the banner of Textualism or Originalism, he is dismissive of fellow justice Stephen Breyer?s theory of ?active liberty?--whereby the principles of the Constitution are adapted to changing popular definitions of democracy. On points, Scalia is probably right that Breyer?s view at worst is ?a make-it-up-as-you-go? type of interpretation. There is no doubt that Breyer?s view would make the Court potentially compliant to a broad-based clamor for religious laws to protect the public good in a time of crisis.

But the Originalists are reasonably well identified in some troubling common traits. Among them are a tilt away from individual rights and toward ?public good,? which is often described in ways that support business and corporations; and a view that the incorporation of the Bill of Rights to the states by way of the Fourteenth Amendment does not automatically confer such things as the obligation to separate church and state. They are big on the death penalty, big on small government, and big on executive powers.

In better times the tendencies of the Court to some hasty action on the church/state front could be moderated more easily. But these are not good times, at least for personal liberties.

In better times the people themselves (the true Fourth Estate and a legitimate part of the checks and balances the Founders believed in) might signal a need to go slowly. But too many of the people, frustrated by corruption in government and previous Supreme Court rulings they believe were excessive, have now enlisted in a campaign to take over the government in the name of God. Another large piece of the electorate is too secular to care about such matters, or else openly hostile to all things religious in public life. Large numbers of people from both groups have been so scared (see ?men?s hearts failing them for fear and the expectation of those things which are coming on the earth? Luke 21:26, NKJV) by catastrophic events and the demagoguery of some public officials that they will agree to almost anything in the name of greater national security.

An Unfinished Conflict
The struggle for the Supreme Court is not yet over, of course. The Alito confirmation process exposed the fault lines of a major cultural divide in the United States. And there is a very real prospect of at least one more change in the makeup of the Court within this administration?s tenure.

Adventists cannot help recognizing the dynamic move away from separationism in the decisions of the Supreme Court over the past two decades, whatever they think of the merits of an individual judge or justice. The evidence is available, urgent, and compelling. Even if there were no other matters of personal and spiritual liberty at stake in the present moment, the rethinking of the separation of church and state at the nation?s highest court should be sufficient cause to send Adventists to their knees in prayer.

Which all puts me very much in mind of the melodic appeal of that Christian radio song in Las Vegas: ?If My people who are called by My name will humble themselves, and pray and seek My face, and turn from their wicked ways, then I will hear from heaven, and will forgive their sin and heal their land? (2 Chron. 7:14, NKJV).

Of course, a positive outcome to the struggle for America?s highest court ultimately hinges on the manner of the appeal to the truly Supreme Court!

1 Justice Clarence Thomas, an Episcopalian at the time of his 1991 confirmation, was educated at a Catholic college and seminary, and has indicated that he has now become a practicing Catholic.
2 Ellen G. White, The Great Controversy, p. 440.
3 See, for instance, a serious scholarly challenge in Thomas Jefferson and the Wall of Separation Between Church and State by Daniel L. Dreisbach.
4 White, p. 445.

Lincoln Steed is the editor of Liberty magazine. For more information on the work of Liberty magazine and Adventist efforts on behalf of religious liberty, click here.