Christian conservatives have long viewed federal courts as obstacles to their Christian-nation goals
When Donald Trump sent White House adviser Stephen Miller onto the Sunday morning talk shows, Miller’s most chilling comments were his repeated attacks on the federal judiciary and his assertion that “the powers of the president to protect our country are very substantial and will not be questioned.”
Complaining about court rulings against Trump’s executive order on immigration and refugees, Miller insisted that there are “three co-equal branches of government” and “the judiciary is not supreme.” On Fox he said, “We don’t have judicial supremacy in this country.” Miller told CBS News that “it’s been an important reminder to all Americans that we have a judiciary that has taken far too much power.”
You might think that conservatives who griped constantly that President Obama was overstepping his authority might express alarm about the suggestion that Trump will do whatever he wants, no matter what the courts say. But don’t expect many objections from the Religious Right. Miller’s language about “judicial supremacy” comes straight from the mouths of Religious Right leaders who have long viewed the federal courts as obstacles to the creation—or in their minds, restoration—of America as a Christian nation whose laws reflect their interpretation of the Bible.
Religious Right leaders helped Trump win the election in large part based on his promise to fill Supreme Court vacancies with judges in the mold of the late Antonin Scalia, an ardent foe of reproductive choice and legal equality for LGBTQ Americans. The 2016 Republican platform calls the Supreme Court’s 2015 marriage equality decision a “lawless ruling” and quotes Scalia referring to the ruling as a “judicial Putsch.” Conservative Catholic intellectual Robert George, a founder of the National Organization for Marriage, called the marriage equality ruling an act of “judicial usurpation”—one of the very phrases Miller used this week in describing a court ruling against Trump’s executive order.
In recent years, some right-wing pundits have specifically been making the case for overturning more than two hundred years of American constitutional law, and asserting that the executive and legislative branches do not have to accept court rulings they disagree with. Several Republican presidential candidates were among the right-wing leaders who have argued that elected officials should ignore, defy, and nullify Supreme Court rulings that they object to.
Some Religious Right leaders might welcome a constitutional crisis that would weaken the ability of the federal judiciary to check their designs.
The Religious Right’s Half-Century Grudge Against the Supreme Court
The modern Religious Right political movement was founded, in part, by tapping conservative evangelicals’ anger about the federal government moving in the 1970s to withdraw tax-exempt status from private schools that cited religious justifications for racially discriminatory policies. After years of warnings, the IRS withdrew the tax-exempt status of the notoriously racist Bob Jones University in 1976, sparking outrage among conservative evangelicals. The government’s actions were grounded in the Supreme Court’s 1954 decision in Brown v Board of Education, which found that legally enforced racial segregation in public schools was unconstitutional. Brown was denounced at the time by the late Jerry Falwell, Sr. and other religious conservatives. More than 100 southern politicians signed the Southern Manifesto, which called the ruling a “clear abuse of judicial power,” and politicians across the South waged a campaign of “massive resistance” to the ruling. Bob Jones battled the Internal Revenue Service for years, but in 1983 the U.S. Supreme Court upheld the agency’s action against the university.
Not surprisingly, Religious Right leaders rarely refer to their precursors’ defense of segregated schools, preferring to target court rulings on religion in the public arena. It is an article of faith among many Religious Right activists that what they see as America’s moral decline began with Supreme Court rulings in the 1960s that upheld the separation of church and state by prohibiting school officials from leading students in a government-approved prayer or Bible readings. At the time, many evangelicals, including the Southern Baptist Convention, supported those rulings. But in recent decades they have been repeatedly cited as the beginning of America’s downfall. Christian-nation activist and conservative political operative David Lane says those rulings created a “false god of secularism” and a “spiritually decadent, godless society.” Pat Buchanan recently fumed, “Secularist justices de-Christianized our country.”
In a less frequently discussed 1961 ruling in Torcaso v. Watkins, a unanimous Supreme Court overturned a Maryland law that required a person holding any “office of profit or trust”—basically any government position—to declare a belief in God. That ruling did away with a clearly unconstitutional religious test, but in their 2008 book, “Personal Faith, Public Policy,” Family Research Council President Tony Perkins and anti-gay activist Harry Jackson called the decision one of the “major assaults” launched against the Christian faith by the courts.
Religious Right leaders also view the Court’s 1973 decision in Roe v. Wade, which recognized a constitutional right to privacy that includes a woman’s right to abortion, as an illegitimate ruling, and they continuously seek to erode its impact through legislation and lawsuits that they hope will lead to its eventual reversal. Lane has said that in response to Roe, the church “should have initiated riots, revolution, and repentance.”
More recently, Religious Right leaders have objected strenuously to court rulings that moved the country toward legal equality for LGBTQ people, including Lawrence v. Texas, which in 2003 overturned state sodomy laws that made gay people de facto criminals. In 2009, the late Phyllis Schlafly warned about the legal challenge then being mounted by LGBTQ-equality activists to the federal Defense of Marriage Act; she said that striking down DOMA—something the Supreme Court did in 2013—would be “the same kind of judicial supremacy” exercised by the Supreme Court in the infamous pre-Civil War Dred Scott case, in which the Court ruled that African Americans could not be citizens of the United States. In a 2004 book, “The Supremacists,” Schlafly called on politicians to stop “the tyranny of judges.”
The Supreme Court’s 2015 decision in Obergefell, which declared that same-sex couples have the right to be legally married, and a series of Supreme Court and lower court rulings in the years preceding, have generated intensified Religious Right hostility to “judicial tyranny” and energized new calls for elected officials to ignore, or nullify, the decision.
Resistance to the Supreme Court’s Marriage Equality Ruling
Religious Right leaders and their conservative Catholic allies set out a marker with the 2009 manifesto against abortion and marriage equality known as the Manhattan Declaration. Its signers, which included several U.S. Catholic bishops, vowed that they would not “bend to any rule purporting to force us to bless immoral sexual partnerships, treat them as marriages or the equivalent, or refrain from proclaiming the truth, as we know it, about morality and immorality and marriage and the family.”
Mat Staver, Liberty Counsel
Anti-gay activist Peter LaBarbera called for “massive civil disobedience” in 2014 when the Supreme Court decided not to hear some appeals of marriage equality rulings, and he urged “statesmen and citizens alike” to “reassert their state sovereignty against escalating judicial supremacy.” Defining marriage, said the Family Research Council’s Tony Perkins that same year, is “a choice for the people, not judicial tyrants.”
In 2015, as the Court was considering the marriage equality case, Liberty Counsel’s Mat Staver and conservative Catholic activist Keith Fournier authored a pledge vowing to resist a marriage equality ruling and warning the Supreme Court “not to cross this line.” Mike Huckabee and Rick Santorum joined dozens of Religious Right activists in signing the pledge. One signer, former House GOP Leader Tom DeLay, warned the court that “all hell is going to break loose” if the justices move to strike down state bans on same-sex marriage, urging states to “assert their sovereignty” and “defy” such a ruling.
In the wake of the Supreme Court’s ruling, Ryan Anderson of the Heritage Foundation rushed into print a book laying out a road map for resisting and reversing marriage equality in the short and long term. Step one: “Identify the decision as illegitimate judicial activism.”
Religious Right leaders have been following Anderson’s playbook, denouncing Obergefell as an illegitimate decision and working on ways to undermine or reverse it. Getting Donald Trump elected was one part of the strategy, because his pledge to appoint right-wing justices meant that the Supreme Court itself might be convinced to overturn the ruling in the not-too-distant future.
But another part of the Religious Right response has been to call for resistance and nullification. Religious Right activists and Republican presidential contenders like Huckabee and Ted Cruz rallied around Kentucky county clerk Kim Davis, who was represented by Staver when she refused under court order to sign marriage certificates for same-sex couples. Said Huckabee at the time, “When people of conviction fight for what’s right they often pay a price, but if they don’t and we surrender, we will pay a far greater price for bowing to the false God of judicial supremacy.” Trump also defended Davis’ actions.
Liberty Counsel has also been representing Alabama Chief Justice Roy Moore, who in September 2016 was suspended without pay for the remainder of his term by the state’s Court of the Judiciary after violating the canons of judicial ethics by telling state probate judges to continue enforcing the state’s ban on same-sex marriage in defiance of federal court rulings. That March, Liberty Counsel crowed that Moore had “rejected” the U.S. Supreme Court’s decision, calling his action “a clear victory for the rule of law and an historic decision by the Alabama Supreme Court.” Said Staver, “The Alabama Supreme Court has rejected the illegitimate opinion of five lawyers on the U.S. Supreme Court.”
At the time, Staver sent supporters a letter saying, “In Alabama and across America, state judiciaries and legislatures are standing up against the federal judiciary, resisting tyrannical rule and upholding the moral law of God.” He asked people to send money and to sign a “vote of confidence” letter to Moore, which said in part,
Thank you for not bowing your knee to the U.S. Supreme Court’s egregious 5-4 marriage opinion on same-sex “marriage.” No civil authority, including the U.S. Supreme Court, has the authority to define marriage as anything but the union of one man and one woman!
I have contended for years that the key to breaking the back of judicial tyranny is for the elected representatives of the people at the state level to rise up against an out-of-control Supreme Court and just say “No. Not gonna happen on our watch. Your ruling is unconstitutional, and because it is unconstitutional we have a sworn duty to reject it.”
Moore has also been defended by the Family Research Council’s Tony Perkins, who said in 2014, “I think it’s time we throw the opinions of unelected judges onto the dunghill of history where they belong.”
Judicial ‘Tyranny’ as 2016 Rallying Cry
One of the most vociferous critics of “judicial supremacy” has been former Arkansas governor and two-time presidential candidate Mike Huckabee, who made the issue a centerpiece of his bid for the 2016 Republican nomination and repeatedly denounced “judicial supremacy” on the campaign trail, calling it “one of the greatest threats to our liberty.” Former House Speaker and Trump confidant Newt Gingrich similarly campaigned on the issue during his 2012 presidential bid, attacking the judiciary as “despotic” and “dictatorial” and urging Congress to abolish courts that make “anti-American” decisions.
Just before the Supreme Court’s June 2015 marriage equality ruling, Huckabee sent a letter to “conservative leaders and pro-family activists.” In it, he wrote:
The notion that the Supreme Court is an exclusive entity empowered to interpret the Constitution is a modern myth, which has flourished since the 1960s. I reject this idea as just another flawed, failed feature of big government, inconsistent with what our founders fought a revolution to establish…I also refuse to surrender to the false god of judicial supremacy…I will fight judicial tyranny and return power to the people.
Of his fellow presidential candidates, he said, “If you lack the backbone to reject judicial tyranny and fight for religious liberty, you have no business serving our nation as President of the United States.”
Huckabee said that if he were elected president, he would simply ignore a Supreme Court ruling favoring marriage equality, saying that such a ruling would not be the “law of the land” because the Supreme Court “can no more suspend the law of nature than they can the law of gravity.” He said that if he were elected president his Supreme Court nominees would have to publicly declare that they “do not believe in judicial supremacy.”
In the 2016 edition of his 2006 book “Rediscovering God in America,” Gingrich complained, “For two generations we have passively accepted the judiciary’s assault on the values of the overwhelming majority of Americans.” Judicial supremacy, he wrote,
…only survives due to the passivity of the executive and legislative branches, which have refused to use their respective powers to correct the Court…A president who believes that judicial supremacy is a threat to our freedoms will use any appropriate executive branch powers, by itself and acting in coordination with the legislative branch, to check and balance any Supreme Court decision he or she believes to be fundamentally unconstitutional.
Huckabee said that the government should simply ignore Supreme Court decisions on marriage equality, abortion rights and the separation of church and state, pledging to outlaw abortion by executive fiat if elected president.
Ted Cruz also joined in by saying that the federal government can nullify Roe v. Wade without a constitutional amendment or court decision.
Schlafly, one of Trump’s biggest early boosters, included an attack on “judicial supremacy” in her final book, copies of which were distributed at the Eagle Forum’s “Life of the Party” event during the Republican National Convention. In it she called for Republicans to repudiate Roe v. Wade and to nullify the Obergefell ruing:
When supremacist judges presume to rewrite portions of our law, most especially if it is a law that we have had for millennia such as our law defining marriage, it’s time for the American people to speak up and say “No” just as Abe Lincoln did when supremacist judges ruled that blacks could be considered another man’s “property.”
… All Americans must use every tool in the political process to reject judicial supremacy and return to government by “we the people.”
Other Religious Right leaders campaigned for Trump based on the claim that the Supreme Court’s marriage equality ruling is a threat to religious liberty.
As the Republican nominee, Trump attended a “Pastors and Pews” event organized by Christian nationalist David Lane, whose events have been attended by countless Republican officials in spite of his extremism. Lane says that America’s mission is to glorify God and advance the Christian faith, and he has called the separation of church and state “a fabricated whopper.” Lane is no fan of the federal courts:
The grandiosity and recklessness of the radicalized, secular United States Supreme Court in the last century is mind-blowing. The Court has birthed a full-scale catastrophe, corrupting 500 years of natural law and threatening America’s long-term, sustainable freedom. Congress has failed to fulfill its historic role to check and balance the judicial and executive branches of government. It’s up to us “we the people” to hold them accountable.”
Trump, while not demonstrating any enthusiasm for taking on Obergefell, repeatedly promised Religious Right leaders that he would appoint Supreme Court justices in the mold of Antonin Scalia. Trump aggressively courted Religious Right leaders, but sometimes his tone with evangelicals was a kind of cocky taunting, telling them they might not like him but because of the Supreme Court they had “no choice” but to vote for him.
Nullification and a Trump Judiciary
In recent years, right-wing leaders, including former Rep. Ron Paul, have pushed elected officials to resist court rulings and federal authority on a wide range of issues by nullifying Roe v Wade, federal gun regulations, and even federal income taxes. Before Trump’s electoral college win, Religious Right leaders were portraying the potential election of Hillary Clinton, and her ability to nominate judges to the Supreme Court and other federal courts, as a death-knell for religious freedom in America, a development that would call for increasing defiance from the states.
Trump’s election, and his public commitment to populating the federal judiciary with judges who get an ideological stamp of approval from the Heritage Foundation and Federalist Society, could tone down some of the right-wing calls for nullification. But as long as Roe and Obergefell stand, right-wing leaders will be pushing the president, members of Congress, and state-level officials to defy “judicial supremacy” and “judicial tyranny.”
With Trump increasingly agitated about any court ruling that doesn’t go his way, it is likely that we will see further attacks on the judiciary coming from the White House.
Trump and his conservative allies, however, may want to heed Chief Justice John Marshall’s observation that “If the legislatures of the several states may at will annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the Constitution itself becomes a solemn mockery.”