THE CHRISTIAN RIGHT, THE FEDERAL COURTS, AND THE CONSTITUTION IN THE UNITED STATES Judith A. Garber* INTRODUCTION The current Christian Right5 is built upon its 1970s precursor, but it has moved well beyond it There’s more than one way to skin a cat, to become a more radical movement in both style and there’s more than one way to take a and substance. A centrepiece of this radicalism is black robe off the bench. – Tony Perkins, a concerted, unabashed effort to make American President, Family Research Council1 courts – most obviously, but certainly not exclusively, the federal appellate courts – into We set up the courts. We can unset the conservative Christian adjuncts to the electoral, courts. We have the power of the purse. legislative, and administrative processes. Three – Representative Tom DeLay, then- elements comprise this effort: 1) attacks on Majority Leader, United States House of judicial independence and authority carried out by Representatives2 means of electoral, legislative, and cultural Twenty-five years have passed since the newly formed Moral Majority helped put Ronald 5 John C. Green argues: Reagan in the White House and a Republican Although no name is perfect, “Christian right” is majority in the United States Senate. The Moral preferable to the more common term, “religious Majority was one organization (and its founder, right,” which properly refers to a possible alliance of traditionalists f rom all religious groups, including the Reverend Jerry Falwell, one figure) at the evangelicals, conservative mainline Protestants, centre of an emerging evangelical Protestant social traditionalist Catholics, Orthodox Jews, and so movement. T his m ovement was g alvanized b y two forth. Although there is evidence for this broader “religious right,” most of the action has 3 aims: defeating the Equal Rights Amendment, been and is with the narrower Christian right. A which Congress submitted to the states for wide range of conservative denominations are visible as opponents of same-sex marriage, but consideration in 1972, and contesting the U.S. Green’s observation remains useful. Supreme Court’s 1973 Roe v. W ade4 ruling, which recognized a constitutional right to abortion. In the The Christian Right at the Millennium (W ashington: The A merican Jewish Committee, April 2001), online: early 1980s, “New Christian Right” was an < h ttp://ww w .ajc.org/InT h e M e d ia/Pu b lica tion s P rint. accurate description of the first widespread public asp?did=139> [Green] engagement of evangelicals in half a century. W hat evangelical Protestants themselves wish to be called is an issue of some controversy. According to Green, “the term ‘Christian right’ has, indeed, been shed by the group it’s meant to describe. W hy? Partly because liberals . have finally managed to attach extremist associations to the phrase. The * The author thanks Janna Promislow and Naomi Schmold for new favored term is ‘the pro-family movement. .’” Q uoted in their helpful comments on earlier drafts of this article. Timothy Noah, “Red-State PC: W hy You Can’t C all Them ‘the 1 Quoted in Peter W allsten, “2 Evangelicals Want to Strip Christian Right’” Slate (8 November 2004), online: Courts’ Funds” Los Angeles Times (22 April 2005). <http://slate.com/toolbar.aspx?action=print&id=2109370>. The 2 Quoted in ibid. term “Christianist,” an evident, critical reappropriation of 3nH.R. J. Res. 208 (92nd Congress, 2 d sess.). The proposed “Islamist,” which has been frequently used in the W est since constitutional amendment read: “Equality of rights shall not be September 11, 2001, to refer to Islamic theocrats, had been denied or abridged by the United States or by any State on circulating on the Internet; it w as placed into the mainstream by account of sex.” Hendrik Hertzberg in a commentary on Congressional efforts 4 410 U.S. 113 (1973), online, LII <http://supct.law.cornell.edu/ to displace judicial authority in the Terri Schiavo case. See supct/html/historics/USSC_CR_0410_0113_ZS.html>. “Matters of Life” The New Yorker (4 April 2005) at 33-34. FORUM CONSTITUTIONNEL (2006) 15:1 23 politics; 2) an expectation of control over who is Evangelical Protestants retreated into a appointed to the Supreme Court and lower federal “defensive separatism” in the 1920s, following the courts; and 3) a reliance on constitutional loss of major cultural and political battles over the litigation as a primary method of social change. teaching of evolution and Prohibition.8 Upon its return to public engagement, Christian As I will discuss, elections are the bedrock of conservatism very quickly re-established itself as the Christian Right’s effort to shape the judiciary, a prominent feature of the American political and governance generally, in its image; landscape, as prominent as the progressive (Black, nevertheless, the combination of majoritarian and feminist, anti-war, etc.) social movements that countermajoritarian tactics also marks the became powerful in the electoral and legislative Christian Right approach to the courts as arenas in the 1960s. Today, groups such as Focus genuinely radical. Thus, the remarks by Tony on the Family, the Christian Coalition of America, Perkins and Tom DeLay at the beginning of this and Concerned Women for A merica are becoming article, which followed Terri Schiavo’s deeply as recognizable as political advocates as the politicized death in Florida in March 2005, and venerable American Civil Liberties Union which typify one form of attack on the courts, are (ACLU), National Association for the part of what is actually a complicated approach to Advancement of Colored People (NAACP), and the courts. They must be examined alongside Planned Parenthood Federation of America. In Christian Right organizations’ intense interest in short, it is taken for granted that evangelical the two Supreme Court seats that became vacant Protestants in the U.S. are politically attentive and in the summer of 2005 and an ongoing legal mobilized, and that the Republican Party mobilization strategy that is as serious and cultivates access to their support, resources, savvy, creative as the movement’s interventions in and daring. democratic politics. During the presidency of George W. Bush, THE TIES THAT BIND “CHRISTIAN” however, and most clearly since his re-election in 2004 along with a larger Republican majority in AND “RIGHT” Congress, the alliance between conservative politics and conservative Christianity has once One of my goals in life is to give the again become new. The movement that I refer to Republican Party courage. – Dr. Rick as the Christian Right has never remained static. It Scarborough, President, V ision A merica6 has survived scandals within flagship organizations (one of which led to the demise of I don’t know of a single business group the Moral Majority in 1989), learned from involved in the judicial nominees. Nada, embarrassing defeats (most notably, the persistent none, zip. – R. Bruce Josten, Executive popularity of Bill Clinton despite his sexual Vice President, U.S. Chamber of improprieties and impeachment), welcomed the Commerce7 support of Catholic Church on a number of high- profile issues (such as embryonic stem cell research), and proliferated its institutional bases 6 Quoted in Shailagh Murray, “Filibuster Fray Lifts Profile of both inside and outside of democratic processes. Minister: Scarborough Has Network and Allies” Washington Post (8 M ay 2005) A01, online: <http://www.washingtonpost. com/wp-dyn/content/article/2005/05/07/AR02005050701266. Ultimately, the goal of the Christian Right is html>. Only six months after the 2004 election, Scarborough a seamless integration of religious, political, and claimed already to have recruited several thousand members to his multidenominational “Patriot Pastors” political network, with the aim of influencing the 2006 elections. Information about Scarborough’s (interlinked) organizations can also be found on t h e w ebsit es o f Vi s i o n A m eri ca AR2005052301938.html>. <http://www.vision.america.us> and the Judeo-Christian 8 D ennis R. Hoover & Kevin R . den D ulk, “Christian Council for Constitutional Restoration <http://www. Conservatives G o to C ourt: Religion and Legal Mobilization in stopactivistjudges.org>. the United States and Canada” (2004) 25:1 International 7 Quoted in Jonathan W eisman & Jeffrey H. Birnbaum, Political Science Review 9 at 24. Also see Clyde Wilcox, “Business Groups Tire of GOP Focus on Social Issues” Onward Christian Soldiers? The Religious Right in American Washington Post (24 May 2005) A01, online: <http://www. Politics (Boulder, CO: Westview Press, 1996) at 30-34 w ashingtonpost.com/w p-dyn/content/article/2005/05/23/ [W ilcox]; and Green , supra note 5. 24 (2006) 15:1 CONSTITUTIONAL FORUM legal institutions achieved through elected that the judiciary should and can be made to officials, appointed officials, and actors in civil reflect a certain set of values has its origins in the society who share a religiously conservative elections of the past quarter-century. More worldview. The movement’s anchor issues are specifically, it has grown out of the brilliant opposition to reproductive rights, the right to die, electoral strategies honed by a complex of and gay and lesbian rights, and support for Republican politicians, Republican party manifold forms public religious expression. organizations (at the national, state, and county However, the concerns of Christian Right groups levels), Christian organizations, and popular implicate the universe of American