Christian Nation (20 page)
Sanjay saw clearly what was happening. He knew that the proponents of theocracy were patient. Their strategy was incremental, and it embraced both the ebb and flow of popular sentiment. They used each ebb in support, like the 2010 midterm elections, to undermine critics like Sanjay who saw the big picture and to reinforce the view of those like Emilie, who saw each setback as the final retreat from a moment of temporary insanity. Sanjay often quoted the brilliant journalist Michelle Goldberg, who wrote, “It’s kind of like being a lobster in a pot, with the water heating up so slowly that you don’t notice the moment at which it starts to kill you.” In retrospect, 2013 was that moment.
After President Palin’s inaugural address, I could not concentrate on my work. As a lawyer, I understood the Fourteenth Amendment, the Bill of Rights, and the sad history of America’s previous flirtations with the criminalization of dissent. I understood that the president’s program threatened to severely weaken, if not completely undermine, the foundation of our liberties. I could see the “setup.” These laws did not establish a state religion, nor did they constitute a full frontal attack on tolerance. But they sought to disable the laws and courts that would be our front line of defense against future attempts to do just that. Whether this effort would succeed was up to the Supreme Court.
Justice John Paul Stevens, then ninety-one years old and a stalwart of the liberal wing of the court, had steadfastly refused to consider resignation during the first Palin administration, knowing that his vote would almost certainly be replaced with that of a radical conservative appointed by Sarah Palin and confirmed by the still-Republican Senate. He remained in good health, swimming in the ocean daily during the summers. But it was unrealistic to think Stevens could hang on for another four years, and following the election most Supreme Court watchers expected that he would bow to the inevitable and tender his resignation. But the old man, horrified by the legislation so hastily passed by Congress and knowing that the constitutional challenges that followed would soon wend their way to the Supreme Court, issued a terse two-sentence press release stating that he had no intention to resign in the face of the critical and historic work facing the court.
One month later Stevens was killed in a car crash on the way to work, his limousine broadsided by a Hummer only blocks from his town house near Capitol Hill. The security camera at that intersection was out of order and thus did not record the driver, who fled the scene of the accident and was never found. The Hummer had been stolen from the driveway of an army colonel seconded to the State Department. Although the investigation was not completed, the official view was clear: a stolen car, the thief fleeing the scene, and bad luck for Justice Stevens. There was no specific evidence of foul play, but millions of Americans felt intuitively that this had been no accident. For many Americans, the death of Justice Stevens was a moment where cold creeping fear supplanted anger and ridicule as their reaction to the administration’s insistence on a “Christian Nation.”
President Palin was elaborate in her praise for the deceased justice and surprised everyone by sending to the Senate a nominee who was reliably conservative but not as radical as anyone, including her own supporters, had expected. Often described as an Ivy League Tea Partier, Ted Cruz was the son of Cuban immigrants, a graduate of Princeton and Harvard Law School, former attorney general of Texas, clerk for Justice Rehnquist, and prominent Supreme Court litigator with a major firm. His pro-gun, pro-prayer, anti-separation, and anti-abortion credentials were impeccable, but the left could not claim he was unqualified. With the filibuster-proof majority in the Senate, Cruz was quickly confirmed.
Justice Souter, appointed by the first President Bush but more often aligned with the liberal wing of the court, had long wished to resign and return to his native New Hampshire. But he was a younger man, only seventy-three, and he too shelved his retirement plans when Justice Stevens was killed.
The US Supreme Court, even with its new solid majority of five judicial conservatives, still gave only a mixed verdict to the president’s signature legislation. The Defense of Freedom provisions essentially criminalizing criticism of the government as “sedition” were struck down on First Amendment grounds, but the alien deportation portion of the legislation was upheld. The Constitution Restoration Act provisions attempting to prevent courts from giving effect to treaties to which the United States was a party were also struck down, given the specific constitutional sanction accorded to treaties signed by the president and ratified by the Senate. But the far more troubling parts of the act were those purporting to reverse decades of Fourteenth Amendment “substantive due process” jurisprudence, which is what prevented individual states from acting to limit individual rights and freedoms, whether specifically mentioned in the Constitution, such as those in the Bill of Rights, or those derived from other parts of the Constitution or fundamental concepts of personal liberty (such as the right to privacy). These parts of the act the Court upheld on the highly controversial basis that Article III of the Constitution allows the Congress to make exceptions to the Supreme Court’s appellate jurisdiction and thus that by extension the lower federal courts have no jurisdiction on any matter as to which Congress has denied the Supreme Court appellate jurisdiction. I did not know a single lawyer at RCD&S or elsewhere, no matter how conservative their politics, who agreed with this part of the decision. The deans of the top twenty law schools signed a public letter protesting both the result and reasoning of the decision. It was now the law of the land that any federal judge could be impeached for attempting to exercise jurisdiction on any matter “concerning [any governmental] entity’s, officer’s, or agent’s acknowledgment of God as the sovereign source of law, liberty, or government.” The long history of the federal courts as the enforcers of separation of church and state was at an end.
The consequences were immediate. Oklahoma, Wyoming, and Alabama declared themselves Christian states. And in a frenzy of legislative activity, freed from the constraint of constitutional review, states throughout the South and West adopted scores of laws that had been languishing at the fringes of their state capitals for years. The most popular included “banning” Islamic law, making it illegal to extend spousal benefits to gays, banning the teaching of evolution unless as one of several possible theories including both creationism and intelligent design, re-criminalization of sodomy and adultery, making school prayer mandatory, banning from use in schools any book by a gay author or with a gay character, and dozens of other hugely popular pieces of legislation that the evangelical-controlled state legislatures believed would be protected by the Constitution Restoration Act from scrutiny by the federal courts.
Although federal jurisprudence on abortion was based on an implied constitutional right of privacy and had nothing to do with the separation clause, the state legislatures, under the coordination of Tony Perkins’s Family Research Council, nonetheless soon passed scores of anti-abortion bills. Each of the new laws was designed differently, with the idea that at least one type of anti-abortion law was bound to survive federal scrutiny under the new Supreme Court even though
Roe v. Wade
was still the law of the land. A Family Research Council “score card” from 2013 in Adam’s file showed four hundred anti-abortion bills working their way through the state legislatures. Alabama passed five. The legislative tactics were varied: abolishing all family planning services (so as not to single out abortion and contraception), requiring all women to have an ultrasound prior to an abortion, banning (again) use of all taxpayer money for abortion services, banning (again) public insurance coverage for contraception and abortion and extending the ban to all private insurers, as well as the more straightforward criminalization of both the giving and receipt of an abortion. All were challenged in federal court, but the number and variety of legislative approaches at the state level were such that the ACLU declared itself “overwhelmed.” The right case on which to reverse
Roe v. Wade
had not yet made its way to the Supreme Court, but with the death of Justice Stevens, observers of the court believed that it was now just a matter of time.
Within a year of the inauguration, we had in effect become two countries, with the legal norms of one antithetical to the other. A few pessimists said this was the beginning of the end of the United States and predicted the gradual erosion of the country into a loose confederation of convenience between the two blocks—a view that was dismissed as extreme by even the avowedly liberal press.
During 2013 and 2014, legal challenges to the social and religious legislation by the states started to be decided by both state and federal courts. The results were startlingly incoherent, with some federal district courts and circuits construing the Constitution Restoration Act narrowly to allow only those state laws dealing with traditional “separation” issues (such as the display of religious symbols on government property) while others construed it broadly, disclaiming judicial review for virtually any state legislation premised on religious or moral grounds. State court decisions cited state constitutions and various legal theories in addition to the Constitution Restoration Act as the basis for failing to give effect to federal preemption of the newly enacted state laws. Courts issued orders to stay the enforcement of decisions by other courts, and enormous uncertainty followed regarding what the law was at any particular time and place.
Toward the end of 2013, the Fox Faith & Freedom Network announced a national movement to ensure that the Constitution Restoration Act was fully enforced, with nightly exhortations for citizens to report to F3 any public official who appeared to be resisting the mandate to put God back at the center of our national life. Within weeks, any red state federal, state, or municipal judge without a Ten Commandments plaque in his or her courtroom was at risk of becoming the target of noisy public protest and attempted impeachment. No small-town mayor dared resist a call for a Christmas crèche outside of town hall, and no school principal dared discipline a teacher who insisted on starting each day with his or her children on their knees in prayer to Jesus Christ. And without reliable intervention from the federal courts, evangelical activists pushed for enforcement of other state initiatives on evolution and gays in education. The country and world watched with fascination as elected attorneys general in Oklahoma, Kansas, and Alabama prosecuted science teachers refusing to follow state mandates to give equal time to creationism and intelligent design. Sanjay pointed out to the national media that each of those teachers was also openly homosexual.
F3 led a relentless campaign to diffuse popular anger and doubt about these developments. Scholars and historians appeared daily to lecture on America’s constitutional design, with the states—being closest to the people—remaining sovereign. We had lost our way, they argued, due to the influence of socialism in the twentieth century, which envisioned a federal government that was big and all-powerful. Discarding this discredited notion took us back to our historical roots and ensured more perfect freedom.
“What’s free,” the dean of Oral Roberts University Law School asked, “about a little girl not being able to pray in school to her God for strength when her mother is sick? What’s free about a small town in the South not being able to enjoy the crèche in front of town hall that was there for their parents and grandparents? What’s free about a couple in Oklahoma, faithfully married for thirty years, now being told that their marriage means something else entirely? Why should big-city folks tell rural Americans how to live? I don’t know about you, but I think we now finally have regained what our grandparents had—real freedom. I just don’t understand how all these liberal elites think it’s freedom to tell other folks how to live and to try to destroy their religion.”
This live and let live feint was surprisingly successful. Blue state people of ordinary intelligence were not inclined to accept the really big lie—that the growth of a secular and tolerant society constituted the tyrannical suppression of Christianity. But they
were
inclined to accept that those folks out in Oklahoma could live how they wished, including teaching their children whatever crazy nonsense they wanted. After all—this strain of thinking went—no one has to live in Oklahoma, and if they don’t like it they can leave. Not my problem.
This was Emilie’s view. Looking back, I can see a strong current of fear behind her anger. This was not how she had planned to see her world unfold. Her plans required the financial services–led economic boom to continue without interruption from the stupidity of politics and politicians. She would make managing director at Credit Suisse, leave with one of her clients to found a private equity firm, then make more money than could be spent in a lifetime on her first deal. Only then would she marry me (or perhaps someone even more suitable) and have children. The rest of her life would be spent decorating fabulous houses and raising perfect children.
That summer for the first time, Emilie and I rented a small house about an hour’s drive north of New York in the charming hamlet of Cold Spring-on-Hudson. At least I thought it was charming. Emilie would have preferred Bedford or East Hampton, but she allowed me to persuade her to pick the Hudson Valley only because a senior Credit Suisse partner, whom she idolized, spent the weekends in a fabulous house on the river in nearby Garrison and had offered to introduce her to “everyone.” She was somewhat surprised when “everyone” turned out to encompass not only bankers and lawyers but musicians, authors, environmentalists, and the local building contractor. But it endeared me to the place even more.
One weekend in July, Sanjay came for a visit. Our small house, which sat up behind the village, was perched on the lower slope of a steep hill. My favorite part of the house was a simple screened porch that faced the river. After dinner, Sanjay, Emilie, and I sat in old-fashioned rocking chairs positioned to take advantage of the spectacular view to the west, where the distinctive bulky profile of Storm King Mountain rose without prelude from the narrow river, creating a dramatic gorge. The featherweight disk of the moon had positioned itself in artful counterpoint to the hulking mountain, illuminating both the water and the granitic façade of the ridge.