May 2004 Church & State | Editorial

Some ideas put forth by the Religious Right and its allies in Congress are so breathtakingly wrong-headed that it is difficult to know where to begin criticizing them.

Consider "court stripping," for example.

For years it has been an article of faith among Religious Right activists that Congress has the power to take certain issues and remove them from the purview of the federal court system. This is called court stripping because it would strip the federal courts of their power to hear these cases.

Throughout the 1980s, U.S. Sen. Jesse Helms promoted schemes to deny the federal courts the right to hear school prayer cases. Helms fought this battle for more than a decade, but his efforts came to naught.

Now other Religious Right conservatives have adopted Helms' strategy. These days, nearly every time a federal court hands down a decision some television preacher does not like, a round of court-stripping bills is introduced in Congress.

Five such measures are currently pending in Congress. The leading proposal, introduced by Rep. Robert Ader­holt (R-Ala.), has 116 cosponsors. It would deny the federal courts the ability to hear cases involving government display of the Ten Commandments, and other religious symbols.

Another measure, the misnamed "Constitution Restoration Act of 2004," was written by former Alabama Supreme Court Chief Justice Roy Moore and his allies. It would ban all cases challenging state-sponsored acknowledgement of "God as the sovereign source of law, liberty, or government." For good measure, it would also retroactively overturn all existing rulings in this area and establish a mechanism for impeaching federal judges who dare to uphold church-state separation!

One wonders if the legislators who wrote these bills slept through high school civics class. The separation of powers means that the U.S. government consists of three co-equal branches: the president, the Congress and the courts. Congress does not have the power, through simple legislation, to decimate the authority of the courts over issues dealing with the Bill of Rights.

Such power would rapidly make the courts superfluous. Whenever a judge ruled in a manner that displeased a legislator, a court-stripping bill would be drawn up and passed. Pretty soon the courts would be nothing but a rubber-stamp body for Congress.

Some members of Congress might want that, but it would be a disaster for American democracy. Courts exist to make hard decisions. When lawmakers overstep their bounds and infringe on constitutional rights, courts are there to pull them back. Without the judiciary to protect us, Americans would quickly be at the mercy of the momentary whims of the majority. Our rights would be trampled on.

We have been down this road before. By the 1960s, it was apparent that state and local governments in the South were not going to protect the rights of African Americans. The federal government stepped in, and federal courts overturned obnoxious "Jim Crow" statutes that denied blacks the right to vote, imposed segregation and relegated a large portion of the population to second-class citizenship.

What if legislators back then had simply been able to strip the federal courts of their ability to hear civil-rights cases? Many in Congress would have backed such a move at that time, but few today would argue that it would have been right for the nation. After all, protecting disenfranchised minorities is among the courts' most important jobs.

The words of Alabama's segregationist governor, George C. Wallace, sound eerily familiar. Speaking on July 4, 1964, Wallace attacked passage of civil-rights legislation, remarking, "Today, this tyranny is imposed by the central government which claims the right to rule over our lives under sanction of the omnipotent black-robed despots who sit on the bench of the United States Supreme Court."

Wallace went on to insist that legislation be passed to "curb the powers of this body of judicial tyrants."

Wallace's mean-spirited rhetoric is nearly identical to that used by the Religious Right today. Focus on the Family, headed by James Dobson, now has a special section on its website,, titled "Stop Judicial Tyranny" that promotes court-stripping bills and blasts the federal judiciary. Note the use of the phrase "judicial tyranny." To the Religious Right, this means "any court ruling we don't like."

The aim of court stripping has always been to deny rights, never to elevate them. Attacking and demonizing the federal courts has always been the blood sport of demagogues and those with small minds. Thankfully, responsible elected officials are unlikely to relent. They will reject such schemes as divisive and wrong.

In 1964, Wallace predicted the American people would rise up against the "tyranny" of the courts and overturn civil rights. Wallace was wrong. In 2004, Dobson predicts Americans will oppose court "tyranny" today. Dobson is also wrong.

Although Wallace softened his views on race late in his life, he is remembered today mainly as a bigot and a segregationist. Similarly, Dobson and his supporters will be remembered as religious extremists so eager to merge church and state that they were willing to trample on basic constitutional protections to do it.

It's a sad legacy to leave behind.