January 2009 Church & State | Featured

Frederick Lane is an author and professional lecturer on civil liberties issues. His recent book, The Court and the Cross: The Religious Right’s Crusade to Reshape the Supreme Court, examines efforts by fundamentalist Christian political groups to persuade the courts to lower the church-state wall. Lane talked about the book with Church & State.

Q. What sparked your interest in this topic?

A. My interest in the Religious Right’s campaign to target appointments to the Supreme Court was sparked by the research on my previous book, The Decency Wars. It was clear that the Religious Right was intent on using the courts to promote a narrow and exclusionary view of America. Given the presidential election in November 2008 and the age of many of the Supreme Court justices (particularly on the liberal end of the court), I felt it was an important time to tell the story.

Q. You say that the Religious Right has been waging a determined crusade for decades to make the United States a “Christian nation.” What would America look like if that movement succeeds?

A. If the Religious Right were to succeed in its crusade to make America a Christian Nation, the primary victim would be pluralism. At the very least, a particular brand of Christianity would have been explicitly endorsed in the Constitution. The teaching of evolution would be left to the discretion of individual states, as would the drafting and forced participation in (or at least exposure to) a state-authored prayer. Abortion would also be at the mercy of individual state legislatures. The Ten Commandments would be hung in a variety of public spaces. State and federal tax dollars would go directly to religious schools and other religious organizations. In the more extreme versions, Old Testament principles of morality and punishment would govern public and private behavior.

Q. Religious Right strategists’ top goal has been taking over the Supreme Court. How close have they come to achieving their goal?

A. The Religious Right has come perilously close to achieving its goal of taking over the Supreme Court. President George W. Bush essentially outsourced the selection and vetting of judicial nominees to representatives of the Religious Right, particularly the ACLJ’s Jay Sekulow and the Family Research Council’s Tony Perkins. Although neither Chief Justice Roberts nor Justice Alito are nominally members of the Religious Right, their overall approach to judicial issues is generally in line the goals of the Christian right.

Q. You say conservative justices have battered the wall of separation between church and state in recent decades. Is church-state separation still in danger at the high court?

A. There is no question that the wall between church and state has been under persistent assault since William Rehnquist was appointed Chief Justice. Although many of the core rulings of the Earl Warren Court remain good law, the Rehnquist Court among other things expanded the extent to which federal and state funds could be spent in religious schools. More recently, the Roberts Court made it virtually impossible for taxpayers to challenge the Bush administration’s distribution of funds to religious organizations through the White House’s Office of Faith-Based Initiatives.

Q. The Religious Right now has its own law schools (Regent University, Liberty University, etc.) and its own well-funded legal organizations (the American Center for Law and Justice, the Alliance Defense Fund, etc.). How influential are these outfits?

A. Certainly within the Religious Right, the evangelical educational institutions, law firms, and public policy groups enjoy tremendous influence. And thanks to the careful strategic focus on the Supreme Court, that influence increasingly extends to the broader society. The ACLJ and Jay Sekulow, for instance, frequently argue cases before the Supreme Court. And as I pointed out in The Court and the Cross, the Religious Right has for the last eight years enjoyed a pipeline for student internships and post-graduation job offers on Capitol Hill.

Q. President Barack Obama is likely to nominate liberal justices. Does this mean the danger to the court is past?

A. Hardly. Barring any unforeseen health issues, it is likely that the next two-three retirees will be from the liberal wing of the court. There is no way to predict, of course, how long they will serve, but assuming that President Obama selects their replacements, he will merely be maintaining the current make-up of the Court. At best right now, it can be described as a center-right body, depending on how Justices Anthony Kennedy or Stephen Breyer vote on a given case.

Q. The Religious Right doesn’t have prominent national spokesmen such as Jerry Falwell any more. That means the movement is less visible, but is it also less powerful?

A. The lack of a high-profile, articulate spokesperson like Jerry Falwell does undercut the social impact of the Religious Right, but it probably was more powerful in real political terms over the last eight years than at anytime during Falwell’s leadership of the Moral Majority. President Reagan was superb at giving the Moral Majority lip service, but defied them on a number of important decisions (including the selection of George H.W. Bush for vice-president and Sandra Day O’Connor for the Supreme Court).

By contrast, the Religious Right over the last eight years helped rewrite significant federal policies, torpedoed the nomination of Harriet Miers to the Supreme Court, vetted other judicial nominees, stymied stem cell research, and created a White House pipeline for federal tax dollars. And of course, the Religious Right played a significant role in the selection of Sarah Palin as John McCain’s running mate.

Q. What’s next for the Religious Right? How will the election setbacks in 2008 affect it?

A. The Religious Right will spend the first few months getting used to the fact that their influence in Washington has substantially diminished. It’s not just that the Republicans are out of power; it’s the fact that their handpicked nominee for the vice-presidency played such a prominent role in the defeat of so many Republicans. I think that the Religious Right will take a lot of blame for the election results. At the same time, as the GOP fragments, the Religious Right will remain one of the largest and perhaps most cohesive fragments. As potential candidates for the 2012 nomination look around for support, it will be very difficult to ignore the Religious Right. It will be very interesting to see how things play out. If President Obama wins re-election in 2012, the combination of an open race in 2016 and the possibility of a shift in the court to the left will undoubtedly galvanize the Religious Right once more.

Q. Are you optimistic that Americans can keep the individual freedoms they\'ve counted on the Supreme Court to uphold?

A. Yes, but it requires a commitment to education and participation in the democratic process. We need to do a better job of educating Americans about the political and legal struggles that led to the individual freedoms that they take for granted. We also need to do a more thorough job of explaining the valuable role that the court plays in preserving constitutional freedoms. Above all, we need to help each generation understand that the Constitution is a profoundly pluralistic document, one that was written to encompass a wide range of social and moral values. It was not intended to ratify the policy checklist of a particular faith.

Q. What can individual Americans do to keep a healthy separation between religion and government?

A. Above all, respect the pluralism that has made this country the remarkable place that it is. Already in 1787, America was a nation of immigrants. The firmly secular language of the Constitution was intended to send a message that the goal of this nation was to welcome all creeds and faith. It is a goal that has been imperfectly met on occasion, but the aspiration remains noble.

A greater respect for pluralism would lessen the expectation that the government would favor one religion over the other, and would encourage people to speak out against efforts to do so.