Naked Power Grab: Christian Coalition Plots to Strip Federal Courts of Their Authority to Hear Church-State Cases

By Boston, Rob | Church & State, November 2004 | Go to article overview

Naked Power Grab: Christian Coalition Plots to Strip Federal Courts of Their Authority to Hear Church-State Cases


Boston, Rob, Church & State


Despite the Christian Coalition's best efforts, those pesky federal courts keep upholding the Bill of Rights and the separation of church and state. But not to worry, the group has a plan to fix that: take away the right of the courts to bear those cases in the first place.

This bold gambit, called "court stripping," is all the rage among the Religious Right these days.

The Religious Right's theory holds that Congress can simply pass a law removing the jurisdiction of the federal courts in cases dealing with the Pledge of Allegiance, government-sponsored religious displays, school prayer, same-sex marriage, etc. With the courts out of the picture, Congress would then be free to pass whatever laws it wanted.

Court stripping was a hot topic at this year's Christian Coalition meeting. During a special legislative briefing on Sept. 23, several House members backed the scheme. Indeed, that same day the House passed a measure to strip the courts of their authority to hear cases involving the Pledge. (The measure is expected to face a more skeptical reception in the Senate.)

The Coalition also wants to use court stripping to block federal courts from upholding same-sex marriage and stop them from striking down government-sponsored religious displays, such as the Ten Commandments, in courthouses and public schools.

U.S. Rep. John Hostettler (R-Ind.) talked at length about his bill to deny federal courts the right to hear cases challenging the Defense of Marriage Act, a federal law that bans same-sex marriage. Hostettler said his approach is better than a constitutional amendment, which could take years to pass.

"Congress controls the federal judiciary," Hostettler said. "If Congress wants to, it can refer all cases to the state courts. Congress can say the federal courts have gotten out of hand. Enough is enough."

Hostettler also flirted with open defiance of the courts, pointing out that federal judges have limited power to enforce their decisions.

"When the courts make unconstitutional decisions, we should not enforce them," he told attendees. "Federal courts have no army or navy.... The court can opine, decide, talk about, sing, whatever it wants to do. We're not saying they can't do that. At the end of the day, we're saying the court can't enforce its opinions."

A follow-up speaker, U.S. Rep. Robert Aderholdt (R-Ala.) advocated court stripping as a means to protect state-sponsored Ten Commandments displays, such as the one erected by former Alabama Supreme Court Chief Justice Roy Moore in Montgomery. …

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