In its last term the Supreme Court announced a series of significant and controversial decisions concerning American cultural life, including gay rights, abortion rights, prayer in schools, and religion in schools. To give us perspective and insight into the Court’s forays into the culture wars, in July, IWF invited two renowned constitutional scholars, Judge Robert Bork and University of Virginia Professor of Law Lillian BeVier.
At the end of this past term, the Supreme Court produced mixed results, although mostly bad from the conservative point of view. And that’s the way we have to judge these days: not in terms of constitutional reasoning, but in terms of ideology and politics.
The Supreme Court this past term made one thing clear: Constitutional law is useless to study and impossible to teach. It used to be that when a term of the Supreme Court came to an end, analysts gathered looking for a shift in doctrine here, a hint of the future there. No longer. Perhaps we are learning that what was intellectual discipline is now politics, and a simplistic, highly partisan form of politics at that.
One of the most important of the institutions captured by the Left is the Supreme Court. For the last half century, the Court has been a revolutionary force in American culture and politics, taking the lead in remaking America. For example, in past terms, there have been decisions defining the family, protecting pornography, adopting rules rendering it virtually impossible to prosecute obscenity, refusing states the authority to support all-male military academies, creating special rights for homosexuals, limiting school disciplinary procedures, and banishing religion from public life. And, of course, inventing a right to abortion.
During this last term of the Supreme Court, the court in Erie v. Papás A.M., held that nude dancing was entitled to considerable protection as “expressive behavior” under the First Amendment. Then, in Santa Fe Independent School District v. Doe, they struck down a school policy allowing students to elect a speaker — who might choose to utter a prayer — before home football games. One leading Supreme Court advocate suggested that the students should from now on dance nude before the games.
The anti-prayer decision showed two prominent aspects of the Court’s nonconstitutional value system. First, though it invoked the establishment clause, the decision ran directly counter to the clause’s historical meaning. And second, it demonstrated a militant secularism. Chief Justice Rehnquist’s dissent justly observes that the majority opinion was “bristling hostility” toward religion.
The decision in Boy Scouts of America v. Dale that the Boy Scouts have a constitutional right, called “expressive association,” to bar an open homosexual from serving as an assistant scoutmaster was influenced less by doctrine than by a general fear about allowing, not this particular person, but homosexuals in general, to serve as counselors to young boys. Today, of course, this is a fear that dare not speak its name.
What is remarkable is that four justices would have upheld the law that courted precisely the danger that everybody had in mind. With the departure of one member of the majority, homosexuality will become a favored category of persons. In part, it already has, in the Court’s jurisprudence.
But it remained for the abortion issue to reveal the full extent of the cultural Left’s determination to flatten the moral landscape. A Court majority in Hill v. Colorado overruled its own First Amendment doctrines in order to uphold the state ban on abortion protesters who sought to approach and talk with women seeking abortions.
But that decision paled compared to the invalidation, in Stenberg v. Carhart, of the Nebraska statute prohibiting partial birth abortions, a practice so close to infanticide as to be logically indistinguishable. The majority thought that the statute might unduly burden the right to an abortion because it included only an exception in cases where the mother’s life was threatened, not where her health might be adversely affected. To require an exception for health means that any abortionist finding a physical, mental, or emotional.
harm would make any such statute unenforceable. There’s no doubt that these clinics would find such harm in all cases. Radical feminism and radical autonomy apparently conquer all other values, as they have in other Court decisions.
The Court’s jurisprudence is now so disconnected from the actual Constitution that it seems to defy explanation. Professor Robert Nagle said, “The demands of ideology, jurisprudence, and even the Constitution, begin to pale if you think your job is to protect civilization itself.”
Why do a taste for power, distrust of the common man, and the defense of civilization always drive the Court in one direction? Why does the Court force into the Constitution notions of radical personal autonomy and an egalitarian redistribution of power? The fact is that one wing of the Court has aligned itself in the culture war with the intelligentsia against the rest of us.
Despite its death as an economic nostrum, the socialist impulse is the ruling passion of our age and is far broader than economics. It is possible to see socialism as one manifestation of a preference for the universal over the particular, which is why it has been noted that socialists typically display a strong abstract sympathy for mankind, and very little sympathy for individual people. Conservatism is more likely to respect the particularities of human circumstances. One block on the Supreme Court is given to a socialism of politics and culture, which necessarily implies redistribution of power in both areas.
Of course, not any set of universal principles will do. The universal values of religion will not do. The liberal block on the Court, like liberals generally, is secular, and in some members of the Court, it is fanatically so. This block silently rejects the irrefutable evidence of what the establishment clause was actually meant to prohibit, and has rewritten the clause to sweep away almost all public manifestations of religion.
Most people have gotten used to the Court’s usurpation of democratic prerogatives. That is why the Court succeeds in remaking the cultural and moral architecture of the United States. It is also why so few voters cast their ballots with the Supreme Court and constitutional governance in mind. Whatever respect we once had for the morality of process, rather than the attractiveness of particular results, has long since eroded. That is deeply unfortunate. Democracy depends on the rule of law, which in turn depends on adherence to the morality of process.
Robert Bork is the John M. Olin Scholar at the American Enterprise Institute.
There are no easy answers to the larger question of how the Supreme Court decides these kinds of cases, which offer lots of hard questions and often painful realities. Rather than try to paint a big picture, I will talk about one of the cases, Boy Scouts of America v. Dale. In that case, the Boy Scouts appealed a decision by the New Jersey Supreme Court that held the Boy Scouts were a “public accommodation” and thus subject to the state law forbidding discrimination on the basis of sexual orientation. The Boy Scouts argued that the First Amendment grants them freedom of association to define the moral character and conduct of persons who will serve as scoutmasters.
A variety of Supreme Court precedents pointed in different directions. In the 1986 case of Bowers v. Hardwick, the Court had held that legislatures may declare homosexual conduct illegal. Another case, Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston (1995), held that the private organizers of the St. Patrick’s Day Parade could exclude a gay group from marching, despite the anti-discrimination requirement of the Massachusetts Public Accommodations Law.
Then there was the 1999 Romer v. Evans case, involving Colorado’s Amendment Two, which would have precluded all state government actions designed to protect the status of persons based on their homosexual orientation or conduct. Justice Kennedy’s majority opinion seemed to signal another change of course, holding the amendment unconstitutional because it was born of nothing more admirable nor worthy of respect than animosity toward the class of persons affected.
Other precedents seemed to work against the Boy Scouts, such as Roberts v. United States Jaycees (1984) and Board of Directors of Rotary International v. Rotary Club of Duarte (1987). Both signaled that the anti-discrimination principle was going to trump freedom of association for membership organizations.
One perceptive academic commentator suggested that the Court was bewildered by Amendment Two, impelling it to a confident assertion that the amendment was enacted simply to express animosity to homosexuals. And, because the Court is nothing if not intolerant toward intolerance, the next step to condemning the amendment was a short one. The commentator said that the Court’s exposition is a fairly exact rhetorical expression of the psychological impulse of intolerance. The opinion conceives what is unusual to be foreign, what is foreign to be evil, what is evil to be threatening. It then suppresses what is threatening Amendment Two.
What worries me when thinking about the culture wars’ effect is that there is so much intolerance. Not so much the alleged intolerance of the Right, as that of the Left. Though I hate the labels, I worry about the intolerance of the media and academic elites. And it seems that some of the Justices that we occasionally label conservatives, Justices Kennedy and O’Connor, for example, are fearful of being accused of intolerance.
Listen to what Justice Stevens had to say in his dissent in the Boy Scouts case: “Every state law prohibiting discrimination is designed to replace prejudice with principle.” Notice the intolerance here. There’s no benefit of the doubt. There’s no assumption by Justice Stevens that those who have embraced the policy in question have done so from good, even though perhaps in his view, misguided, motives. No effort to consider in a serious way that the ancient roots from which such policies have emerged might, just might, have something of wisdom in them. Instead he calls them “intolerant” and “prejudiced.” And he lets it go at that. But even Justices Breyer, Souter and Ginsburg dissociated themselves from that point of his dissent. And I’m really glad.
Despite having some reverence for tolerance, and maybe even the desire to be the beneficiary of it myself occasionally, tolerance itself is not unequivocally a social good. Tolerance on the part of the Court would imply a willingness to listen, to reflect, and to give sympathetic consideration to all points of view. These judicial attitudes are the premises on which our legal system purports to be based. But, tolerance ought not to be an excuse for any of us to try to avoid making moral decisions.
Let me sketch another way to think about the Boy Scouts case: The decision might represent the Court’s intuition that the culture wars have got to be fought on the political and social, and not the judicial, battle-field. By prematurely declaring constitutional victory for those who have not been able to secure their political fortunes fully through the political arena, they have short-circuited the political process.
Think of Roe v. Wade. The Court’s interventions have proved counter-productive. They have divided rather than unified the nation. They create resentment and generate feelings of political alienation rather than promoting stability and respect for the political process. And, perhaps worst of all, from the Court’s point of view certainly, they have depleted the Court’s own political capital.
Now it is here, with respect to organizations like the Boy Scouts, that we need to note the importance of the freedom of association for expressive or political purposes. And how it ought to come into play occasionally to trump anti-discrimination. It’s essential that we recognize, then protect, freedom of association because it’s in the interest of all individuals who would seek to affect political outcomes.
I would even claim that the Constitutional protection that the Court offered to the Boy Scouts is in the long term in the best interest of gays and groups like them, who begin as an oppressed minority and acquire political power and cultural influence and social acceptance only by their ability to find and associate freely with one another. That right is worth approximately zero unless it includes the right freely to associate with other like-minded souls and not to associate with the non-like-minded.
Lillian BeVier is the Doherty Charitable Foundation Professor of Law at the University of Virginia and a member of IWF’s National Advisory Board.