Doing Justice to Justice Sunday

Joseph M. Knippenberg

May 1, 2005

Over the last couple of weeks, the battle over President Bush’s stalled judicial nominees—clearly a dress rehearsal for the inevitable Supreme Court nomination—has given us its full share of spectacles. At the center was “Justice Sunday,” a made-for-television, radio, and the internet rally at a Louisville Baptist church sponsored by the evangelical Family Research Council and featuring many of the heaviest hitters on the conservative side of the culture wars, including James Dobson (of Focus on the Family), Charles Colson (of Prison Fellowship Ministries), R. Albert Mohler of the Southern Baptist Theological Seminary, and William Donohue of the Catholic League, along with a videotaped appearance by Senate Majority Leader Bill Frist.

The rhetoric was hot on both sides, though I must say that more of the heat was generated by those on the modernist or secularist side of the debate. For example, the inimitable Frank Rich in the Sunday New York Times wrote of “a campaign against so-called activist judges whose virulence increasingly echoes the rhetoric of George Wallace and other segregationists in the 1960’s.” At a counter-rally in another Louisville church, left-wing evangelical Jim Wallis, editor of Sojourners and author of the best-selling Gods Politics called the event “a declaration of religious war” and “an attempt to hijack religion.” The position taken by the religious right, he said, “borders on idolatry.” At the same rally, Rev. Nancy Jo Kemper asserted that “[r]eligion and religious people are being manipulated to achieve political ends, and politics are being manipulated and used to achieve ends that appear to tend more toward theocracy than democracy.” Rev. Barry Lynn of Americans United for Separation of Church and State spoke elsewhere of “a constitutional Armageddon in which the religious right controls all three branches of government.” Others simply called Justice Sunday “un-American.”

As if that weren’t enough, Senator Ken Salazar of Colorado got into a war of words with James Dobson and Focus on the Family (headquartered in Colorado Springs), first expressing his fears about a looming theocracy and then going so far as to say “[f]rom my point of view, they are the Antichrist of the world,” a remark which he later unapologetically withdrew: “I regret having used that term. I meant to say this approach was un-Christian, meaning self-serving and selfish.”

While press accounts routinely describe the Justice Sunday oratory as fiery, I confess that I don’t see too much of it in the speeches. The nearest thing to “fiery” I can find is this passage from James Dobson’s speech, already identified by otherwise sympathetic commentators as ill-considered:

There’s a majority on the Supreme Court that is, and you’ll have to pardon me, but this is the way I see it, they’re unelected and unaccountable, and arrogant, and imperious, and determined to redesign the culture according to their own biases and values. And they’re out of control. And I think they need to be reined in.

To be sure, beforehand there were off-the-cuff remarks by political figures, including Tom DeLay and Jon Cornyn that should never have been uttered, but the rhetoric in Louisville’s Highview Baptist Church was hardly incendiary. The conservative evangelicals didn’t live up to the stereotypes their opponents wished to impose upon them. There were at least as many references to the intentions of the Founders as to the Bible, and the vast majority of the explicit or implicit religious allusions called upon Christians to be “salt and light” in the culture or to be good citizens within the constitutional context. Christians are to bear witness to what they hold to be true, right, and just, but the arguments for those positions can be couched, as they are by all of Justice Sunday’s speakers, in constitutional terms.

Indeed, as Albert Mohler of the Southern Baptist Theological Seminary points out, there’s an interesting convergence of “originalisms.” Those who regard the Bible as God’s Word, not to be distorted by creative “interpretation,” can have an analogous respect for the intentions of those who drafted and adopted the Constitution. This is not to say that the Constitution should be revered as infallible and inerrant. Human beings, after all, can amend the Constitution, but only in accordance with constitutional processes. Nevertheless, the conservative evangelical approach to Biblical hermeneutics has its natural counterpart in the jurisprudences of original intent and strict construction, both of which are plausible and entirely secular positions, however much some liberals would like to define them as outside the mainstream.

Mohler’s speech and persona (as crafted for him by his political critics) also led me to a couple of additional reflections. First, because his unyielding fidelity to the Bible alone (sola scriptura) led him to state that the “the Roman church is a false church and it teaches a false gospel,” and that “I believe that the pope himself holds a false and unbiblical office,” he is presented as altogether intolerant and unworthy of association with anyone in the mainstream of American political life. Of course, as James Dobson responded on Mohler’s behalf, “It certainly shouldn’t come as a surprise that Protestant and Catholics have significant theological differences that date back to the Reformation.” It is possible for grown-ups to have theological differences and still find common moral ground, which is at the heart of what is sometimes called the pan-orthodox alliance (between Protestants, Catholics, and Orthodox Jews) on the traditionalist side of the culture war. And it is possible for a grown-up to hold some such theological position and recognize that it does not affect the legal or civil rights of fellow citizens or of the parties to a case which he or she is to adjudicate. That Thomas Pickering as President of the Mississippi Baptist Convention said that “Christians ought to base their decision-making on the Bible” does not mean that Thomas Pickering as a federal Appeals Court Judge will substitute the Bible for the Constitution. While this is not the time or place to enter into the complicated history of the Christian attitude toward civic obligation, this separation—rendering unto Caesar what is Caesar’s and unto God what is God’s—certainly has a long-standing and distinguished heritage.

My second (and final) point is closely connected with this line of argument. As presented on Justice Sunday, the critique of liberal jurisprudence is that it replaces the words of the Constitution and the intentions of its authors (and adopters) with the personal policy preferences of judges. That many liberals embrace this description of adjudication is clear from their characterization of Republican appointees as Republican judges, though, for example, I don’t think that it’s accurate to call either William Brennan or David Souter a Republican judge. Nevertheless, the common assumption that for judges there cannot be any barrier between personal policy preferences and adjudication or any scruple against substituting one’s strongly-held beliefs for the law goes a long way toward explaining the opposition to religiously conservative judges. Liberals assume that conservative Catholics, like William Pryor, cannot but judge as Catholics first and foremost, rather than as Americans sworn to uphold the Constitution. They assume, in other words, that for everyone, the personal is the political, as the old Movement slogan goes. They cannot conceive of the conscientious restraint of conscience in matters where one has a clearly-delineated public responsibility.

In spite of all the heat, I still think that Justice Sunday has made it possible to bring some light to our current circumstances. We’ve heard disquisitions on the history of parliamentary procedure in the Senate. We’ve had a civics lecture on “deliberative democracy” from Al Gore (Al, deliberation doesn’t mean giving in to the intense minority, but rather helping them to become reasonable). We’ve had long and sometimes learned efforts to think through and understand the intentions of the Founders on everything from the role of religion in public life to the role of the Senate in giving advice and consent. And we’ve had the opportunity to discuss and debate whether toleration is a secular “value,” a religious principle, or both. Those who can tune out the noise can learn a thing or two. Unfortunately, the mainstream media isn’t providing much help.

Joseph M. Knippenberg is Professor of Politics and Associate Provost for Student Achievement at Oglethorpe University.