Bork Sees War Over Culture In Court Cases
The Wanderer/December 1, 1988
WASHINGTON, DC. — At the 15th anniversary dinner of the Catholic League for Religious and Civil Rights held here Nov. 17th, Robert H. Bork told the audience that a war is in progress over the possession of American culture. On one side is the liberal "knowledge class" which holds a radically individualistic view of morality and on the other side is the majority of the American people who believe in religion and community. The main battlefield, Bork emphasized, is in the law and in the courts.
Bork, whose nomination by President Reagan to the Supreme Court was rejected by the U.S. Senate, pointed out that laws reflect our assumptions about how we should live together and then mold the society that produces the laws. The courts have accepted a highly individualistic view of morality, a view that stems not from the Constitution but from Locke. That philosopher held that liberty should be limited only when its exercise threatens material damage to another person.
The liberal "knowledge class," or "chattering class," as Bork characterized it, has supplied the judges in much of the federal judiciary. The judges share the assumptions of the class that produced them, and this class does not believe in the communal shaping of morality. Quoting a Supreme Court decision, Bork said that liberals believe that "it is a moral fact that a person belongs to himself and not to others or to society as a Whole."
In seeking to apply this individualistic view of morality and society, the Supreme Court has expanded the meaning of the First Amendment to the Constitution. This amendment states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.'' The first half of this is the establishment clause; the second half is the free exercise clause. Bork said that the clear intent of the First Amendment is to prevent the federal government from establishing a church as had been done in the Church of England and in some individual states. The framers did not intend to forbid military and legislative chaplains and financial support for Christian education, all of which the framers who voted for the First Amendment proceeded to vote for in the same session of Congress.
Despite the intentions of the people who wrote and ratified the First Amendment, however, the Supreme Court has been expanding the establishment clause to exclude all references to religion in public life, and all support for religious activities. The Court has upheld only long-established traditions such as legislative chaplaincies.
Bork pointed out that the expansion of the free exercise clause paradoxically undermines the role of religion in America. The courts have sometimes granted exemptions from ordinary secular laws to those who object to them on religious grounds. In the famous case of Yoder vs. State of Wisconsin, the Supreme Court allowed the Amish Yoder not to pay the unemployment tax on which they had religious objections. Bork pointed out that such decisions invariably favor small fringe groups, and coupled with the expansion of the establishment clause, these decisions undermine the role of the large, traditional churches. A religious situation dominated by small sects is much more congenial to the individualistic view of morality than one dominated by a few ancient churches with large followings and historic claims to determine morality.
Bork pointed out the irrationality of the Supreme Court's expansion of both the establishment and the free exercise clauses. If Wisconsin had passed an unemployment law that specifically exempted the Amish, the law would have undoubtedly been declared unconstitutional by the same court that itself exempted the Amish from the law!
The original intent of the framers of the Constitution, Bork concluded, is the only safe guide to interpreting that Constitution. He indicated that a return to the original intent of the framers of the First Amendment would have three main legal effects. Religious symbolism would be allowed in public life. Aid could be given to Church schools. Religious groups would have to depend on legislatures, not courts, to give them exemption from laws to which they objected.
Bork's evening talk addressed many issues that had been raised in the afternoon session. Washington attorney Stephen Galebach pointed out that for Christians religious freedom is essential to carrying out their divinely appointed vocation of proclaiming the Gospel of Jesus Christ. Therefore, for Christians today and the active Christians who ratified the First Amendment, the establishment clause is in the service of the free exercise clause. That is, the establishment clause was not motivated by a hostility to religion but by a respect for the rights of conscience. Galebach acknowledged that expanding the free exercise clause tends to expand the establishment clause that is being used to banish religion from public life.
Michael McConnell of the Christian Legal Society and the University of Chicago Law School denied !
that the framers of the Constitution |
and of the First Amendment in any
way intended to create a secular
state. McConnell pointed out that
the principal support for the First
Amendment came from highly religious Baptists, Quakers, and other dissenters from the established
churches. The framers knew that
the virtues and restraint necessary
for republican self-government depended on the morality that drew
its authority from religion. The
Constitution was designed to protect religious belief, not undermine
William Ball, an attorney who
has argued many cases concerning
the free exercise of religion before
the Supreme Court, called for vigorous attempts to expand the free
exercise clause, especially to protect the rights of parents to educate
their children. Ball detected clear
evidence of anti-Christian bigotry
in court decisions against parents.
He noted that the attorney for the
state of Wisconsin who was asking
the court to deny parental rights 1
over children even quoted with
great approval Otto von Bismarck,
an anti-Catholic and a proponent of
the Prussian view of the unitary
"The Real World"
Pastor Richard John Neuhaus,
author of The Catholic Moment,
detected a major threat to religious
freedom in the ignorance of Americans. In a recent survey, 27% of
governmental officials and 23% of
academics in social science and his
tory denied that religious freedom
is protected by the Constitution.
Neuhaus said that religion serves
to limit the power of the state.
Since religion affirms that there is
a realm that transcends the state,
and that this realm is more important than the political world, religion by its nature serves as a rebuke to the state that tries to expand
its powers endlessly. That is why
Nazis and Communists have al
ways persecuted even docile and
Some recent trends in the Catholic Church disturb Neuhaus. Once
he was invited to speak at a large
conference of priests in the Mid
west. The Bishop introduced him
with these words: "Now that we
have heard the speakers on liturgy
and doctrine, we will get back to
the real world as Pastor Neuhaus
speaks to us of Christian political
involvement." Neuhaus hoped that
the Bishop merely slipped, but it is
clear that many Catholics regard
the political world as more real
than that of Gospel and sacrament.
Religious Freedom Awards
Fr. Virgil Blum, president of the
Catholic League, awarded the Justice Joseph Story Religious Free
dom Award to Sen. William L.
Armstrong of Colorado. Arm
strong, an Evangelical Protestant,
was outraged by the District of
Columbia law that required
Georgetown University t9 support
a homosexual student group. He
introduced a law that passed both
the House and Senate which direct
ed the District of Columbia to ex
empt religious institutions from the
law forbidding discrimination
based on sexual orientation.
The John Paul II Religious Free
dom Award was given to Judge W.
Brevard Hand for his decision in
favor of parents' rights in Alabama, to Bishop Austin Vaughan
for his work in Operation Rescue,
and to John Cardinal O'Connor for
his defense of the integrity of Catholic institutions. James Cardinal
Hickey and Auxiliary Bishop Alfaro Conrad of Washington,
D.C., gave the Benediction.
(The proceedings of the conference will be published by the Catholic League. For further information, write: The Catholic League
for Religious and Civil Rights,
1100 W. Wells St., Milwaukee,
Wis., 53233, 414-289-0170.)
Leon Podles, medievalist, G-man, and father of six, occasionally writes about the talking pictures.