Posted on Sat, Apr. 30, 2005
Religious right seeks judiciary that dissolves church-state separation
BY DICK POLMAN
Knight Ridder Newspapers
PHILADELPHIA - (KRT) - Religious conservatives, emboldened by President Bush's re-election and confident of their political clout, are not interested in merely overhauling the judiciary. Ideally, they are seeking a judiciary that would remove the wall of separation between church and state.
This ambition is stated clearly in numerous legal briefs currently on file at the U.S. Supreme Court in connection with a pending case; they seek removal of "a Berlin wall" that is "out of step with this nation's religious heritage." In fact, their leaders argue in interviews that the church-state barrier is a "myth" invented by the high court in 1947, thanks to a twisted interpretation of our founding documents.
Matthew Staver, a religious-right lawyer who recently argued a church-state case in front of the Supreme Court, said Friday, "The term `separation of church and state' is an easy hook. People hear it, they think of the First Amendment. It's like the line `Float like a butterfly, sting like a bee,' and you think of Muhammad Ali.
"But there's no "separation phrase in the First Amendment ... Interpreting it that way is laughable."
At the same time, he and others are anxious to assure skeptical Americans that their dream of a barrier-free America is benign. Staver, who has ties to the Rev. Jerry Falwell, said, "No way I want America to head toward a theocracy. I don't know anybody interested in that; it's not on our radar screen."
Yet their desire to breach the church-state wall - coupled with their incessant attacks on "liberal activist" judges and their success in prodding Republicans to intervene in the Terri Schiavo case - is sparking a backlash that threatens to sow new divisions. As Carlton E. Veazy, a Baptist leader in Washington, charged in a conference call the other day, "We are being led to this theocracy by the Christian right, who will not stop until they take over the government."
Critics think the church-state barrier is being breached already: A Justice Department guidebook on treating rape victims excised draft language that touted emergency contraception; pharmacists who refuse to fill birth-control prescriptions on moral grounds are lauded by Sen. Rick Santorum, R-Pa., who wants to protect them by enacting a federal "conscience" law; and some Christian agencies may be using taxpayer money to proselytize and practice what critics charge is job discrimination.
One Christian program in northeastern Pennsylvania, financed by Bush's faith-based initiative, requires each worker to be "a believer in Christ and Christian life today" and has spent taxpayer money on construction of church property. The sponsoring Firm Foundation is now being sued in federal court by six local residents who say they don't want government to promote Christianity with their taxes. In response, Firm's lawyer, Steven Aden, says the group has been targeted "simply because it (works) from a faith-based perspective."
All told, there is a growing concern, even among some conservative analysts, that the religious right's Republican allies might pay a political price for their close collaboration. These analysts, for example, cite an April 14 remark by House Majority Leader Tom DeLay, who assailed the judiciary for trying "to impose a separation of church and state that's nowhere in the Constitution."
Glenn Simpson, a Tennessee law professor who runs the conservative Instapundit blog, wrote recently: "The Republicans' weakness is that people worry that they're the party of Jerry Falwell and Pat Robertson. They tried, successfully, to convince people otherwise in the last election, but they're now acting in ways that are giving those fears new life."
Those fears are reflected in the latest Gallup poll, which reports that, by a 2-to-1 ratio, Americans now say that the religious right has too much influence on the Bush administration. This poll, conducted immediately after the Schiavo case, contrasts sharply with surveys conducted between 2001 and 2003, when sentiment about the religious right's influence was evenly split.
So it's noteworthy that Bush, in his news conference Thursday night, took issue with religious-right orthodoxy. Christian leaders implied a week ago that those who seek to block Bush's court nominees are not "people of faith." But Bush said, "I don't ascribe a person's opposing my nominations to an issue of faith," and he added that he opposed any religious tests: "If you choose not to worship, you're equally as patriotic as somebody who does worship."
No Christian leaders took issue with Bush. But they do expect fealty from the GOP.
In the words of conservative Christian strategist Gary Bauer: "We are now at such a crucial time in the culture war. The Left is in full screaming mode, and they are counting on Republican knees to buckle, as they have so many times in the past." He said it's critical to overhaul a judiciary "that is replacing our Judeo-Christian heritage with moral relativism."
Mark Rozell, a political analyst at George Mason University who tracks the religious right, said Thursday: "They feel that the political circumstances won't be this good again - a strongly conservative Congress, a religiously conservative president. They've toiled for nearly 30 years, and the Republicans always said, `Wait your turn.' They believe the time is now."
And that means it's time to convince Americans that President Thomas Jefferson, in a famous 1802 letter, was not really trying to curb religion when he endorsed "building a wall of separation between church and state." The high court invoked the phrase when it formally erected the wall in 1947. The religious right sees this as regrettable; its members believe the ruling is marred by "numerous and serious historical errors."
In legal briefs filed in a pending Supreme Court case on the posting of the Ten Commandments, religious-right groups point out (accurately) that Jefferson's phrase appears nowhere in the Bill of Rights or the Constitution and that Jefferson wrote the phrase merely as a show of support for Connecticut's Baptists, who were upset that the state government was officially favoring the Congregationalists (independent scholars say the religious right also is correct about this).
But the briefs don't mention 1786, when young Jefferson was the author of a Virginia law separating church from state. This law is cited on his grave, at his request. A preamble excerpt: "To compel a man to furnish contributions of money for the propagations of (religious) opinions which he disbelieves, is sinful and tyrannical." Another: "Our civil rights have no dependence on our religious opinions, any more than our opinions in physics or geometry."
Barry Lynn, who directs the Washington-based Americans United for the Separation of Church and State, said, "The religious right would love the court to say, `We've been wrong since the '40s, so now you can do whatever you want.' Failing that, it'll push for `theocracy lite' - to make sure that you're a second-class citizen if you have different beliefs. But America's sensible center is saying, `Hold on; going to the edge of the cliff is not what we had in mind.'"
Bush's remarks Thursday night appear to acknowledge the danger of a backlash. But Staver believes, as a matter of principle, that it's worth pushing the high court to renounce the 1947 reasoning that erected the wall between church and state.
"There's an old saying," Staver said, "and it comes from the Book of Proverbs 18:17." That passage reads partly as follows: "He that is first in his own cause seemeth just." The point of this is that Staver and his allies acknowledge the secularists had the first word in the cause. But they intend to have the last word.