State Imposed Religion

by Henry on April 15, 2005

Bill Frist’s telecast in which he appears with a clatter (right collective noun? would clangour be better?) of Republican-friendly fundamentalists to denounce filibusters of conservative judges as an attack on “people of faith” is unsurprisingly getting a lot of play in the left-blogosphere. But it strikes me that both this and the bungled Republican attempt to make political hay from the Terry Schiavo case provide open ground for a strong Democratic counter-attack. There’s good reason to believe that Frist’s move is a sign of weakness rather than of strength. If this Washington Post article is correct, Frist is pushing the nuclear option not because he thinks that this is a good issue for the Republicans, but because he fears that he won’t stand a chance of getting the Republican nomination in 2008 unless he has the religious conservatives on his side. Going to war over the filibuster is a very risky manoeuvre. The Republican party tried to use the Schiavo case to drum up public support in preparation for this fight, but it backfired. They now find themselves in the worst of both worlds – a general public which is suspicious of Republican efforts to rig the judicial system, and a conservative base which is fired up, and demanding that the Republicans ram through conservative judicial nominations to prevent anything like the Schiavo case from happening in future.

The way to fight back against this isn’t to make arguments about the corruption of the political process. This is the deeper problem – but it’s an abstract one, and unlikely to resonate. There’s a much more straightforward case against the Republicans. Their attempt to bend the judiciary to their will is really about building the foundations of a state-imposed religion. It’s an effort to impose religious norms on people’s private and family lives. More precisely: it aims to take complex decisions out of the realm of the family, and make them subject to the rule of judges who are expected to kowtow to the whims of lawmakers, regardless of their constitutional duties. The United States of America was founded by Dissenters, Unitarians and others who had fled from the tyranny of state-sponsored religion in Britain. As a result, one of the core American values is freedom of religion, and the maintenance of an open space in which people can pursue their own faiths and beliefs, free of interference from the state.

Every time that Republican legislators start talking about the attack on people of faith, Democrats should counter by saying that Republicans are trying to forcibly shove a state-sponsored set of religious values down people’s throats, and to prevent people from making their own decisions in the light of their own values and beliefs. They should point again and again to the outrageous statements made by DeLay, Cornyn and others during and after the Schiavo case – and use the Schiavo controversy as an example of the sort of decision that Republicans would like to take out of the hands of families, and hand over to judges. There’s a real argument to be made that it’s the Republicans rather than the Democrats who are attacking “people of faith,” by trying to impose a one-size-fits-all set of religious values through rigging the judicial system. It’s an argument that might even appeal to a few Christian fundamentalists, since they’ve been on the receiving end of similar treatment in the past. As Godfrey Hodgson tells us, the current resurgence of fundamentalism in American politics is in part a reaction against efforts by the state to ban home-schooling in an earlier era. The Democrats (I should note that I’m not a Democrat myself, but am on their side in this fight), should be hammering home this argument again, and again, and again.



Ralph Luker 04.15.05 at 10:52 am

Just a comment right up front, Henry, that this battle cannot be won if it is framed simply as a struggle between secular and religious America. On a historical note, 18th century proto-unitarians are not 21st century secularists. But more to the point, the battle against the Bush administration’s and the Republicans’ attempt to over-ride all opposition must have the support of those of us who oppose some of these appointments on religious grounds. The secular Left needs to _stop_ equating the religious Right with religious America. Doing so aids and abets the religious Right and you’ll find no objection to that from them. I simply don’t understand why the Left continues to do it.


Henry 04.15.05 at 11:05 am

Hi Ralph – that’s more or less what I’m arguing, isn’t it? That an attempt to impose religious values through the state is an attack on religious freedoms? Am I not getting the point across? Or are you agreeing with me?


Thomas 04.15.05 at 11:08 am

The Schiavo case was a case decided in a court, not within the family. The order to remove Terri Schiavo’s feeding tube was a court order, made by a judge after a hearing instigated by one member of the family, with other members of the family opposed. Whatever one’s feelings on the case, one can’t assert that a defense of the judge’s ruling is a defense of leaving these decisions in the hands of the family.

The criticism of the judicial decisions in the Schiavo case is motivated by a belief–accurate, in my opinion–that the judiciary didn’t follow the law, in part because the law in Florida is inconsistent with the considered moral views of most members of the judiciary.

The larger debate is a debate about self-government vs. individual freedom. There’s no evidence that on the hot-button social issues of the day the forces of conservativism would rather enforce their moral values through the judiciary. Rather, they insist that their values should be allowed to be reflected in law, just as everyone else’s values are. If the people of a state wish to allow abortion, or wish to enact gay marriage, fine (from a jurisprudential standpoint–certainly a conservative might oppose those positions politically).

To misstate the facts of the debate–to miss the point of contention–prevents the argument from going further. That’s unfortunate.


Ralph Luker 04.15.05 at 11:36 am

Henry, I hope that’s what you were saying. There’s a difference between emphasizing freedom from religion and freedom for religion. There’s a difference between emphasizing _religious_ impositions and emphasizing _state_ impositions.
I regret that Thomas ignores the fact that this was originally a debate _within_ the family and that there was an appeal to the state only because the issue could not be resolved within the family. I don’t know that an independent judiciary should be attacked simply for acting when a case was brought to it. The judges didn’t seek it out. That’s what makes the whole attack on an activist judiciary so ludicrous.


catfish 04.15.05 at 11:36 am

I don’t expect this “watch out for state imposed religion” strategy to go very far. Currently, the seperation of church and state issues are stuck on highly symbolic issues–pledge, ten commandments, etc. Occassionally, you’ll hear about faith based social services, but many of the objections can be quelled by using a voucher system rather than the Fed. Gov. funding them directly. I’m not really convinced the Republicans are that serious about these things. They just needed a line on poverty reduction that is more or less consistent with the religious beliefs of their constituits. Issues like right to die and abortion have a strong religious component, but they can be argued either way on secular grounds. Thus, the average person doesn’t see theocracy as much of a threat. In fact, crying “state imposed religion” makes one sound hysterical to many people who have seen the public presense of religion decline in their lifetime.

It’s a shame. Religious people have benefited greatly from the seperation of church and state. It’s worth mentioning it, but progressives are going to look elsewhere to prevent conservatives from packing the court.

**Actually, I’m not convinced that they are willing to pack the court. Instead, what we are seeing is a cynical campaign to focus anger and rage on one of the few institutions that is not under conservative control for short term electoral gain.


Henry 04.15.05 at 11:36 am

Thomas – I don’t want to get bogged down in a discussion of the merits of Schiavo, but your claims are simply unsustainable on the facts. The dispute began when Terri Schiavo’s parents sought to have Michael Schiavo removed as a legal guardian.There seems to have been a striking degree of agreement among judges that there were no merits to the parents’ case – were all of them (including the conservative ones) misreading the law because of their own moral viewpoints.

Any comment on your claim that

There’s no evidence that on the hot-button social issues of the day the forces of conservativism would rather enforce their moral values through the judiciary.

would be superfluous.


P ONeill 04.15.05 at 11:37 am

Rather, they insist that their [conservative] values should be allowed to be reflected in law, just as everyone else’s values are.

Which prompts the question: what is the constraint on directly passing laws that reflect these values? There’s a distinct sense from Congress that they don’t want to hear about Schiavo-type cases again, and in particular would not want to pass a law requiring that PVS patients be sustained indefinitely when the family (however defined) can’t agree on care. Which suggests that public opinion, as reflected in polls (shaky indicator, I know) is less “conservative” than proponents of conservative values would like to think.


Steve LaBonne 04.15.05 at 11:42 am

Let’s be honest, both ends of the political spectrum have become addicted to trying to use the judiciary to achieve desired results too unpopular as yet to be enacted into law. This shortcut is very destructive in the long run regardless of which side uses it.


Barry 04.15.05 at 11:49 am

Yes, Steve, they’re all guilty, it makes no difference, just two sides of the same coin, he said/she said, ‘shape of the earth – opinions differ’…


Steve LaBonne 04.15.05 at 11:52 am

Is that what I said? Amazing what postmodern hermeneutics can find in a simple text. ;)


Steve LaBonne 04.15.05 at 11:54 am

P.S. For the record, I’m a mildly liberal Democrat and I find the current Republican war on the judiciary repugnant and dangerous.


Steve 04.15.05 at 12:02 pm

You are right, but inconsistent. If the current republican attempts are repugnant and dangerous, presumably the previous democrat attempts (successes?) were also repugnant and dangerous? Or not repugnant (since you are a democrat) but dangerous (since it is an abuse of power)? Or what?
To all. Blah blah blah. What is happening? The Democratic Party is losing power. What is the answer? Remove power from the voters. Simple. You are all democrats (small d) of convenience. Its interesting how Democratic (large D) views are redefined to be constitutionally obligatory-in essence, to be outside of the purview of the democratic masses (in a democracy, to boot). Pro abortion is constitutionally obligatory, anti-abortion is constitutionally unacceptable. Pro affirmative action is constitutionally obligatory, anti-abortion constitutionally unacceptable. Pro gay rights, gun control, etc etc. Face it. When you are a democrat for all views that you have popular support for, and an autocrat (an autocrat of the judiciary) for all views for which you don’t have support, you are a fool.



Thomas 04.15.05 at 12:07 pm

Henry, I wish I were wrong, but I’m afraid you’re the one who is mistaken.

Here’s a description of the case, from a Florida appellate decision in Jan. 2001:

Robert and Mary Schindler, the parents of Theresa Marie Schiavo, appeal the trial court’s order authorizing the discontinuance of artificial life support to their adult daughter. Michael Schiavo, Theresa’s husband and guardian, petitioned the trial court in May 1998 for entry of this order.

In this case, however, Michael Schiavo has not been allowed to make a decision to disconnect life-support. The Schindlers have not been allowed to make a decision to maintain life-support. Each party in this case, absent their disagreement, might have been a suitable surrogate decision-maker for Theresa. Because Michael Schiavo and the Schindlers could not agree on the proper decision and the inheritance issue created the appearance of conflict, Michael Schiavo, as the guardian of Theresa, invoked the trial court’s jurisdiction to allow the trial court to serve as the surrogate decision-maker.

I don’t know how to make it more clear that it was Michael Schiavo who invoked the court’s jurisdiction, and the trial court which made the ultimate decision. Your confusion is a common one, but that it is common doesn’t excuse it.

The “striking agreement” you refer to is an agreement that the trial court judge didn’t abuse his discretion in finding the facts as he did. Showing an abuse of discretion at the trial court level is a very difficult thing to do. It is undoubtedly made more difficult when a majority of those reviewing the factual determination under that very high standard share the cultural predispositions of the trial court judge.

I’m not sure why you think a response on the more important point would be superfluous. My suggestion isn’t that conservatives don’t want to enforce their values in law, but only that they’re attempting to act democratically.

P–I don’t doubt that many in Congress would rather avoid these issues. I also don’t doubt that many in this country–perhaps now a majority–would favor death in almost every instance, regardless of the question. But let’s have the debate, not rule it out of bounds. And when conservatives win–as they had won, to a certain extent, in Florida (Florida law has a presumption in favor of life)–let them win, and follow the law.


Steve LaBonne 04.15.05 at 12:07 pm

Steve, what makes you think I disagree with you (procedurally, that is, not substantively) about those exsmples? E.g. I’m definitely one of those who believes that abortion rights, and public opinion thereupon, would now be in better shape (from my pro-choice standpoint) if the liberalizing trend, which was occurring in a number of states at the time of Roe v. Wade, had been allowed to run its natural course. That’s exactly what I meant.


Duane Smith 04.15.05 at 12:15 pm

As I’ve said elsewhere, it’s hard to tell what First’s political views are. He may well be a theocrat. However, I think it far more likely that he, as are the neocons, is an aristocrat masquerading as a theocrat. In other words, they are using those who really want a theocracy to advance an aristocracy. Aristocrats are more than welling to use the “little people” how ever they want. It is their birthright after all. Or so they think and have been taught.


Henry 04.15.05 at 12:24 pm

Thomas – it’s not a “confusion,” it’s a fact. The court battles began in 1993, when the parents brought an action to have Michael Schiavo removed as guardian. When Schiavo later requested to have the tube removed, he was clearly acting within his responsibilities as guardian. As for your other argument – you’re ducking the question of why judges who presumably didn’t share these values (i.e. conservatives) didn’t find that discretion was being abused. It’s not difficult at all for judges to do this. What is your exact claim here – that they were somehow intimidated by their liberal colleagues? I’m simply not following you.

You’re also not dealing with the ways in which Republican legislators introduced legislation at very short notice which was intended to overturn the decision – and complained volubly when judges didn’t go along with this. This isn’t about conservatives seeking to have their values respected like every one else, as you suggest – it’s about conservative Republicans trying to force the courts to knuckle under to a particular set of values and of judging a case – and making threats against judges who didn’t want to go along. The behaviour of the Republican party is simply indefensible on the terms in which you’re trying to defend it.


SamChevre 04.15.05 at 12:31 pm

Rather, they insist that their [conservative] values should be allowed to be reflected in law, just as everyone else’s values are.

Which prompts the question: what is the constraint on directly passing laws that reflect these values?

That is EXACTLY the point in conflict in the judicial nomination fights–the current judiciary has ruled that certain values (which have been expressed in law, in many cases, for a century or more) cannot be expressed in law, in Roe v Wade, Lawrence, the prayer in school cases, the gay marriage case in Massachusets, etc. Some people oppose any nomination of judges who believe these issues should be subject to legislatures, and much of their rhetoric has been virulently anti-religious; further, many of their statements (e.g. with regard to Judge Prior) have been such as to lead one to believe that they would be unwilling to confirm ANY devout Catholic or evangelical.


Henry 04.15.05 at 12:39 pm


On the Roe v. Wade business, we are in agreement. This should have been left to the political process, not decided by the courts. Chris had a good post on this a couple of years ago on his old blog, Junius. On the claim that no devout Catholic or evangelical would be confirmed – you’re talking complete smack. There isn’t any evidence (beyond Republican talking points) to support this. It’s simply not true.


Bruce Wilder 04.15.05 at 12:46 pm

This article is wrong-headed in the extreme, in terms of its proposed political strategy.

“Corruption” is a far better weapon in this fight. Frist is USING the Religious Right to serve corrupt purposes. The judges he pushes through will not support establishment of religion, or anything more trivial symbolism. That’s not the danger. The immediate danger is that the Republicans will be able to leverage the religious right to push through a Federalist Society clone army, which will resurrect the Constitution-in-Exile, to end Federal regulation of business and wealth.

The goal of Frist and company is economic and (essentially) secular. Frist and company are using the religious right for corrupt purposes. The most effective political strategy is to “reveal” the corruption, and thereby peal the religious right away from Frist.


Hogan 04.15.05 at 12:54 pm

I still think the best position for liberals on this is the one taken by Roger Williams (for religious reasons): any church that can’t survive and grow without special support from the state doesn’t deserve to survive. If you can’t, on religious grounds, convince gays to stop having sex or biologists to believe in creation, tough. You’re not entitled to government support and assistance in making people accept your case.


Katherine 04.15.05 at 1:38 pm

I think the process argument combined with the “these people are psycho & they’ll be focusing on your family next” argument should do the trick.


dipnut 04.15.05 at 1:41 pm

I think the correct venereal term for Republican-friendly fundamentalists would be “bluster” or “splutter”. (For Democrat-friendly socialist-greens I suggest “drone” or “hector”.)

As for these persons setting up a state-imposed religion, are you serious? Of course you mean what you say, I’m not questioning that. I guess you’re right about their motivations. I deplore their uncivilized tactics, as you do.

But do these people really worry you? Do you suppose there’s any chance they will establish a state-imposed religion? It is far more likely that the moon will crash into the earth.

For me, the perversion of the roles of the separate powers is what’s really important. That you consider this “unlikely to resonate” with your political allies confirms my sense of Democrats’ civic irresponsibility.


Thomas 04.15.05 at 1:51 pm

Henry, perhaps we’re talking past each other. My point is only that it is the court that made the decision, not the family, and that point is amply supported in the court documents, as I quoted above. In that court action members of the family were on both sides. To the extent that the guardianship relationship is relevant, I’d note that guardianship is not a spousal relationship, and is entirely a creature of law. There should be no doubt that this dispute was entirely an ordinary legal dispute. Whether this ordinary legal dispute is related to prior disputes is largely irrelevant, from my point of view, but it is certainly true that there was a prior action involving the same parties.

As for abuse of discretion: it isn’t easy to overcome, contrary to your assertion. Demonstrating that a trial court abused its discretion in finding facts is actually a very difficult thing to do, if one follows the law.

So respect for legal process and an ordinarily healthy collegiality and deference to another member of the judiciary likely played a part. It is also possible that the fact that only a minority of the members of the appellate courts shared those values (grant that factual conjecture for the sake of argument) lead to what Cass Sunstein, et al, would call “collegial concurrences.” (See Ideological Voting on Federal Courts of Appeal: A Preliminary Investigation for an explanation of a possible mechanism.)

As for the Congressional legislation: it promised only a new review of the facts of the case. It didn’t guarantee a particular substantive outcome to the review.


Henry 04.15.05 at 2:12 pm


perhaps to some extent we are talking past each other – but the point remains that even though the Congressional legislation formally only guaranteed a new review of the facts, the aim of Republican leaders was unambiguously to sway the judges towards a particular substantive outcome. Hence their complaints after the decision that the judges hadn’t listened to Congress.


Publius 04.15.05 at 8:18 pm

State’s rights? Are you serious?

In the Schiavo case, the Federal government– specifically the DeLay/Frist Congress– far overreached its boundaries and attempted to override the decisions of the Florida state courts, which were properly upheld by the Federal courts out of respect for, you guessed it, state’s rights.

This legislation was a direct attack on state’s rights, and the Christian Fundamentalists weren’t just looking the other way at it, they were howling in unison *demanding* it. How then could you assert that they are merely trying to assert state’s rights. I’m sorry, I’m going with the “state religion” hypothesis. Enough of the radical Fundamentalists represented in own Congress have gone on record stating their goal to turn the USA into “a Christian Nation” that I see little need to guess here.


Dan Simon 04.15.05 at 9:42 pm

More precisely: it aims to take complex decisions out of the realm of the family, and make them subject to the rule of judges who are expected to kowtow to the whims of lawmakers, regardless of their constitutional duties….

There’s a real argument to be made that it’s the Republicans rather than the Democrats who are attacking “people of faith,” by trying to impose a one-size-fits-all set of religious values through rigging the judicial system.

Henry, not only is this complete nonsense, but it’s obvious that you yourself don’t believe it. If you really thought that a majority of the population was against the Republican agenda of “impos[ing] a one-size-fits-all set of religious values”, then it would actually be in your interest to ensure that “judges….are expected to kowtow to the whims of lawmakers”. In fact, you’d see the Republicans’ “rigging the judicial system” to make judges subordinate to legislators, rather than vice versa, as a heaven-sent gift from stupid conservatives. You’d advocate that Democrats happily go along with the Republicans’ judicial plans, then attack their policies directly at election time–without reference to the judiciary–and sail into office. A full slate of liberal social policy legislation would ensue–all of it invulnerable to the complaints of Republican judicial appointees.

But you know full well that the public are on the Republicans’ side, not yours, and that only an arrogantly anti-democratic judiciary is preventing them from enacting laws that you deeply oppose. Of course, it sounds bad to admit that you support all this tyrannical judicial obstructionism, just because you like the results. So you pretend that you’re doing so on behalf of a supposed silent majority that fears the Republican moral agenda. But your strategy of defending judicial prerogatives against democratic legislatures gives you away completely. If the public are really at your side, ready to elect liberals to office if necessary to thwart Republican theocrats, then why are you so afraid of the Republicans’ plans for ensuring legislative supremacy over the judiciary?


bi 04.15.05 at 11:53 pm

That’s why I hate pure democracy. :)


Keith 04.16.05 at 8:05 am

Duane hit it on the head up-thread Frist, and the GOP as a body, are using Fundies for crass political ends. They’ve recognized that the growing number of Evangelicals in the US (scary in itself) are a convenient political hammer. The nail, however, is far more aristocratic. But just like the Kings of old Europe, they’re more than willing to use religion to motivate popular support among the unwashed. Later on down the road, once the Evangelicals have put the princes of the GOP into power, they’ll discover to their horror that their godly representatives are really just Borgias in disguise.


Henry 04.16.05 at 8:40 am

Dan, your habit of making silly claims about what I ‘really’ believe and my evil plans to pull the wool over CT readers eyes is getting to be a bit of a nuisance. I’m banning you from commenting on any of my posts for a week, to see if a timeout improves matters. Any comments you make on my posts over the next week will be deleted.


cracker watch 04.16.05 at 5:21 pm

among the Christian soldiers you’ll hear a lot about ‘ungodly people’ as a class, an inimical one. no muss or fuss with documentation of bloodlines, as with Jews — the bigotry is amenable to name-calling, versatile as ‘liberal’ but with real genocidal potential, thanks to end-times fantansies.

frustrating, all this logic-chopping on the merits, when what’s happening is clear and familiar. This is meant to lead to a final solution.


Ophelia Benson 04.16.05 at 8:40 pm

Oh that arrogantly anti-democratic judiciary. And that arrogantly anti-democratic Bill of Rights, too – it’s a crying shame, that’s what it is. Means there’s some brake on the democratic right to vote to take away other people’s rights (it doesn’t always work, but nothing’s perfect) whenever the democracy feels like it. There oughta be a law.


mason 04.17.05 at 8:34 am

Fristianism is the new paradigm. State’s rights has been exhausted…for now or at least pending the success/failure of the Fristian strategy. Freedom of Religion and separation from State is the best counter strategy.

On the other hand, the left is actually kind of ambivalent about the religion and values thing, so talking religious freedom just won’t play with many.

Separation of Religion/Values and State is yet another problem for similar reasons. How is it that Fundies and the other odd forces that would go Fristian would argue for or even desire that the empire go Christian? This is the end of that long “family values” train building since Reagan.

And there is a paradox. They *want* the state to intervene. This is how secular fascists like limbaugh manage to stay viable talking about the “blow-job” leftivism still lurking in our culture. It is not that any would be Frisian wants the State to save them and their loved one’s from oral sex. Probably far from it. They want to silence and shame further an already silenced left.

It is not about oral, but aural sex. It is not even about sex or values. It is actually beyond the pale as politics. This is not a lively rivalry of brothers, but to the death.

Evey G-d fearing and G-d loving bone in my body says they want the return of The most hideous Father. Perhaps we should just sit back a bit and let them build it. All the while warning and educating the fearful Fundi and Fristian masses as to what is really happening.

If and when the time must come, perhaps we can get rid of this most hideous Father they seek to return upon civilisation. I do say civilisation lightly, ‘casus we have never really managed to put the bastard in his place. Always making concessions, trying to be reasonable, etc.

Love the name of the Blog!

– mason


Uncle Kvetch 04.17.05 at 12:57 pm

it’s a crying shame, that’s what it is. Means there’s some brake on the democratic right to vote to take away other people’s rights

Direct hit. Thank you, Ophelia.

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