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March/April 2006

Discover more articles from this issue.

Freedom in the Old Testament

There is a widespread notion that the Bible, and especially the Old Testament, is and has historically been a force working against the freedom of man....

Robert’s Rules

Has order been restored to the Supreme Court with the appointment of legal wunderkind John Roberts, and Samuel Alito an associate justice? After talk of the Nuclear Option, his easy confirmation seemed like the end of the cold war. The relatively collegia

Quiet Case May Have Far-Reaching Impact

Missing were the shouting protestors with placards, the miniature Ten Commandments tablets, and the throng of media representatives. It was almost business as usual the day the Supreme Court heard the term's sole religious liberty case. Unlike the Ten Com

Jews and the Christian Right

It has been one of the stranger political alliances in American history: the conservative evangelicals of the Christian Right and America's Jews, two...

Freedom and Tolerance

Does religion promote freedom and tolerance? It is a question that might be asked by any observer of the rioting that has followed publication of cartoons in Denmark that offend Muslims worldwide.

All in the Family

Behind closed doors at a Religious Right strategy session in Washington, D.C., last spring, James Dobson sounded more like a hardball political operator than a Christian family counselor. Impatient with President George W. Bush and Republican congressiona

A Populist Religious Movement

Stories of religious disestablishment in America usually revolve around discussion of the origins and meaning of the establishment clause of the federal Constitution. But the story of disestablishment, at least in the early Republic, was much more a state

Toward a Medieval Model

Amid all the activity of a turbulent year, many missed the March 3, 2005, filing of the Constitution Restoration Act of 2005 (CRA) in both houses of Congress (S. 520 and H.R. 1070). If enacted, the CRA would effectively turn the United States into a theoc

What kind of liberty?

It was the "momentous question" that "awakened" and "terrified" Thomas Jefferson, like a "fire bell in the night." Jefferson considered it the "knell of the union." The "question" at issue was ostensibly that of slavery. Jefferson wrote about his nocturna

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Published in the March/April 2006 Magazine
by Lincoln E. Steed

Has order been restored to the Supreme Court with the appointment of legal wunderkind John Roberts, and Samuel Alito an associate justice? After talk of the Nuclear Option, his easy confirmation seemed like the end of the cold war. The relatively collegial grilling of Judge Samuel Alito—the justice described as filling Sandra Day O'Connor's shoes—also belied the real battles on the Court. There is indeed a great deal of ideological repositioning that has significant implications for religious freedom in America.

There is a certain irony in the fact that most of the Rehnquist Court were Republican/conservative appointees. But at the same time it somewhat vindicates the intent of the framers of the Constitution that the Court, by having tenure, be above party loyalty. However, if you listen carefully to the cry of partisans—and in particular the Religious Right—they are more and more calling for the appointment of ideologues who will push agenda over law. This is problematic to all liberty.
Roberts at his confirmation seemed a poster boy for middle-American values. And he may prove to be, without threatening religious freedom issues. But listening carefully to his spare comments and reading his paper trail show a clear identification with a judicial/constitutional worldview that is problematic.

In testimony he hedged on whether there is a general constitutional guarantee of privacy. Of course, that signals he may not favor Roe v. Wade and abortion. While we can rightly join religious activists in decrying the whole abortion model, it did arise from well-thought-out models of the rights of the individual versus the state. Roberts seems to share a growing conservative view that rethinks individual rights. The implications for religious freedom and divergent religious thought are troubling.

Roberts is on record as being uncomfortable with a strict separationist view of the First Amendment. This will further enable things such as the faith-based initiative of the Bush administration—a historic move across the line of separation and one that should properly have been declared unconstitutional by the Supreme Court.

It has been remarked that some of Roberts' noncomments in hearings are eerily similar to those of Clarence Thomas, who is radically conservative in the mold of Antonin Scalia, who opined not long ago that Sunday blue laws are not unconstitutional.

In reality the issue is not quite one of conservative versus liberal in the old sense. The Religious Right has introduced a moral agenda to conservatism that creates a split between the old conservative models of fiscal policy and government restraint and a new reactionary one that has an agenda to reclaim America to a specific historic model of behavior and faith. This new movement has also successfully demonized liberalism by casting it as the mind-set of immorality.

It is worth noting that Scalia best enunciates the new conservative judicial model when he speaks of original intent and textual accuracy. He and others are quite open about this, and it fuels the charge against liberals of legislating from the bench. For Scalia the document means what it says—no more, no less. Of course, the Constitution is a very spare document by design, so many of the modern models are a poor fit taken literally. In those cases Scalia and many of the new conservatives look to original intent. This involves more than a little projecting of their own views into the minds of 200 years ago, and not a little endorsing of views of freedom and religion that we find abhorrent today. Look to a court dominated by such "conservatives" to encourage state involvement in religion, to restrict religious expression that is out of the mainstream, to uphold the prerogatives of business and property (read less rights of divergent religious expression in the workplace), to further empower the executive power, and in general to roll back freedom issues of the past 50 years.

However, if the Court is subject to the influence of the current line of judicial liberalism, we may equally fear for religious freedom.

Justice Scalia regularly demeans those of his fellow justices who hold to a view of a "living" or "evolving" Constitution, whereby they adopt the principles and ideals of the document to today's realities. Justice Stephen Breyer just admitted to this charge in a recently released book outlining his philosophy. It is well thought out and responsible—but in a crisis this mind-set also could subvert religious freedom if the nation seemed to demand it.

In the chaos of the election of 2000 the Supreme Court effectively conferred the election to George Bush because, as Scalia famously put it, there was a good chance that he would lose if they did not act. They did have the right to make a determination—but it ignored the fact that there were other, constitutionally mandated, procedures to follow in an electoral impasse. Here even a conservative-dominated court somewhat responded to political clamor rather than closely adhering to legal proscription. Breyer overtly says that justices should rule based on evolving democratic norms.

For too many, a less-separated church and state is, if not a norm, an agenda item. I fear that both the presently conservative court or a court influenced by an evolving view of the Constitution could as easily restrict true religion.

Comments by Lincoln E. Steed, Editor Liberty magazine

Author: Lincoln E. Steed

Lincoln E. Steed is the editor of Liberty magazine, a 200,000 circulation religious liberty journal which is distributed to political leaders, judiciary, lawyers and other thought leaders in North America. He is additionally the host of the weekly 3ABN television show "The Liberty Insider," and the radio program "Lifequest Liberty."

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