Bork Sees War Over Culture In Court Cases

The Wanderer/December 1, 1988

by Leon J. Podles


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."


Original Intent


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.


Anti-Christian Bigotry


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 it.

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 state.


"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 obedient Christians. 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.