Bringing the case against judges

'Activist judges" are out of control and waging a war on faith, religious conservatives are charging. That's why - even as the United States Senate prepares for a battle over the president's judicial nominations - a conservative coalition is working to broaden the fight to the federal judiciary as a whole. Its ultimate goal is to force Congress to rein in the judges.

The Terri Schiavo case is but the latest in a litany of court decisions that have sparked conservatives' ire. Many were also outraged by rulings that called the words "under God" in the Pledge of Allegiance unconstitutional and that removed the Ten Commandments and Chief Justice Roy Moore from the Alabama high court.

"An atmosphere of atheism is being forced upon us by the courts," says the Rev. Rick Scarborough, a Baptist pastor from Texas who heads the new alliance of Evangelicals, Catholics, and Jews that is leading the charge.

The coalition - called the Judeo- Christian Council for Constitutional Restoration - is unabashedly pressing for radical steps. Congress has the power to undertake these, it says, given its authority to establish federal courts under Article III of the US Constitution.

Proposed steps include withdrawing the courts' jurisdiction over all cases related to the acknowledgment of God or to the protection of marriage. They would extend to impeaching judges that substitute "their own views for the original meaning of the Constitution," or base a decision on foreign law; and to reducing or eliminating funding for the federal courts when judges "overstep their constitutional authority."

"This is the shot over the bow," said Dr. Scarborough last Friday in Washington, as the group - which represents some 40 organizations - held the first of a series of conferences it plans to organize across the country to marshal grass-roots support. "We are trying to restore this country to its constitutional moorings so we are ruled by law and not by judges," he says.

The coalition has backing from members in both houses of Congress, including House majority leader Tom DeLay (R) of Texas. Mr. DeLay addressed Friday's meeting via video, telling the group that the "judiciary has run amok" and that "Congress needs to reassert its authority."

Concerns about the judiciary are simmering on several fronts at once. Senate majority leader Bill Frist (R) of Tennessee, who is trying to keep the focus on judicial nominations, responded to DeLay's statements saying, "We have a fair and independent judiciary today."

Dr. Frist is fighting for his own controversial plan - dubbed the nuclear option - to end the Senate filibuster so that Democrats can't block votes on judicial nominees.

Countering Frist's initiative is the Coalition for a Fair and Independent Judiciary - an alliance of human rights and civil liberties groups - which is mounting a public advertising campaign to save the filibuster and keep extreme right-wing nominees off the federal bench.

The one point on which conservatives and liberals tend to agree is that in a fight over the judiciary the stakes are huge.

"The future of the judiciary is perhaps the most important domestic priority facing the country at this time," says Ralph Neas, president of People for the American Way. Speaking to reporters on a conference call last week, CFIJ leaders worried that conservatives were seeking total governmental control.

"This president has the executive branch, the Republican Party has the legislative branch, and they aren't satisfied; they want the crown jewel of our democracy, and that is a fair and independent judiciary," says Nan Aron, head of the Alliance for Justice.

The new religious coalition strongly backs Frist's filibuster fight, but sees its effort in bigger and broader terms.

Pointing to the statement in the Declaration of Independence that the Creator is the source of inalienable rights, they say the US Constitution has a biblical basis and charge that the federal courts are seeking to turn America into a secular humanist nation by removing all mention of God from public life. In response, they assert the right to acknowledge God in various ways, from creationism and prayer in the schools to religious symbols in the public square.

"Without a recognition of God, we lose our freedom of religion," says former Alabama Chief Justice Roy Moore, who was ousted from his post in November 2003 for refusing to remove a Ten Commandments monument he had placed in the state judicial building. A federal court ruled that the monument was unconstitutional, and the US Supreme Court declined to hear an appeal.

Moore received a hero's welcome at Friday's conference from the more than 200 activists who had come from 25 states. But his low-key, faith-infused talk was more the exception than the rule.

Many speakers used tough language and urged extreme remedies. Several attacked Supreme Court Justice Anthony Kennedy, with some calling for his impeachment. Justice Kennedy (appointed to the court by former president Ronald Reagan) was excoriated for opinions against capital punishment for juveniles and a Texas antisodomy law, and also for citing international norms in his opinions. One speaker charged him with upholding "Marxist, Leninist, satanic principles drawn from foreign law."

Other speakers called for new law schools, saying Ivy League and even some Catholic law schools are responsible for producing secularist lawyers and judges.

At the center of the struggle is the debate over separation of church and state. Conservatives point out that the notion of a "wall of separation" between church and state is not an idea contained in the Constitution but rather a phrase taken from a letter written by Thomas Jefferson. But in recent decades, they complain - starting with the banning of organized school prayer and Bible reading in the 1960s - the courts have enshrined that idea of that "wall of separation" in their rulings.

"Separation" arguments, they suggest, are modern and antireligious and thus should be abandoned.

Other experts in the field of law and religion say it isn't that clear-cut.

Those who favor a firm "wall" and those who seek to eliminate it both "are misguided - there is a middle way between the two," says John Witte, professor at Emory University Law School in Atlanta. America's founders, he says, saw several distinct understandings of church-state separation (see story below).

"It's the changes [in court rulings] since the '60s that make [conservatives] see this as judicial activism, but that's a misunderstanding," says Eric Mazur, associate professor of religion at Bucknell University in Lewisburg, Pa. "The court is simply ruling in a way that reflects a greater diversity in American society."

Some legal experts say "judicial activism" actually cuts both ways today, with conservative and liberal judges both going far beyond the Constitution text in their opinions.

The Constitution Restoration Act - which conservatives have introduced in the House and Senate - would restrict the federal judiciary, including the Supreme Court, in cases involving the acknowledgment of God. The act also defines a basis for impeachment.

"We've had 200 years of history in which the federal courts have exercised jurisdiction over religious matters," says Dr. Witte. "It would be remarkable, to say the least, to undercut that jurisdiction today."

The coalition, however, plans to go all out to mobilize support for the legislation. Whether it wins that battle or not, it intends to send a powerful message.

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."

These phrases of the First Amendment to the US Constitution have been called "articles of peace." For 200 years they have protected freedom of conscience and saved America from the religious wars that have plagued history.

In the US, controversies over the practice of faith have been fought in the courts, and not on battlefields.

But court decisions in recent decades have sparked growing anger among religious conservatives, who speak of "judicial tyranny" and a "judicial war on faith." They charge judges have made new law on the basis of a "mythical wall of separation" between church and state never intended by the founding fathers.

Others say the founders intended the principle of separation to ensure several different forms of protection: protection of church and state from one another, of individual liberty of conscience from both, of states from the federal government, and of society from unwelcome participation in and support for religion.

The latter idea was the most controversial, says John Witte of Emory University. In 1800 it started a long battle that is still under way today.

The Federalist party "accused [Thomas] Jefferson of being the anti-Christ ... and a secularist bent on destruction of the necessary religious foundations of law," Dr. Witte says. And the Republican party "accused [John] Adams of being a Puritan pope and religious tyrant bent on subjecting the whole nation to his suffocatingly narrow beliefs."

In the 19th century, the Supreme Court had relatively few religious cases on its docket. But clashes between Protestants and Catholics kept the church-state separation debate simmering.

In the 20th century, religion cases grew dramatically, as religious pluralism increased. The US became more litigious and groups such as the ACLU and American Jewish Congress began challenging traditional practices.

In a 1947 case, the court spoke of a wall of separation that "must be kept high and impregnable," paving the way for controversial decisions on schools and public displays. Christian legal firms have won some victories in recent years that represent a partial retreat from the strict separation interpretation.

• Sources: Edwin S. Gaustad, "Church and State in America," Oxford University Press; John Witte, "Facts and Fictions of Separation of Church and State."