Theo-Cons and Neo-Cons on Theology and Law

By Stackhouse, Max L. | The Christian Century, August 27, 1997 | Go to article overview

Theo-Cons and Neo-Cons on Theology and Law

Stackhouse, Max L., The Christian Century

When the supreme court issued its decisions on assisted suicide and religious liberty in June it touched on topics that have been hotly debated in religious circles. The debate on the judiciary's approach to these issues got heated up last November when the journal First Things published a symposium arguing that the American judicial system had overstepped moral boundaries, usurped democratic procedures and discriminated against religion.

In a symposium titled "The End of Democracy?," Robert Bork, Russell Hittinger, Charles Colson, Hadley Arkes and Robert George argued that in recent decisions lending legitimacy to abortion, homosexuality and assisted suicide, the courts were making laws that were neither implied by the Constitution, approved by the population nor in accord with most religious teachings. Further, the tendency of the courts to decide these moral issues was eroding state and local capacities to make decisions and was reinforcing the current tendency to take every controversy to court rather than debate it democratically.

The temptation to rely on the views of a centralized elite, the symposium argued, is accompanied by the tendency to dismiss from public discourse all religiously based or theologically guided arguments. Since religion is the context in which most people form communities of moral discourse and debate moral issues, the dismissal of religion cuts out of civil society a primary source of normative principle, social vision and ethical insight.

Several of the high court's June decisions indicate that the situation is not as dire as the symposium suggested. For example, the way the distinction between letting die and killing is spelled out in the decision on doctor-assisted suicide is very close to what theological ethics has taught for years. The court rejected claims that people have a constitutional "right to die," and Chief Justice William Rehnquist wrote that it would be wrong to hold that "any and all important, intimate, and personal decisions" are protected -- a statement with weighty implications in several areas. Other justices said that policies in this area are matters for democratic legislation rather than court adjudication.

Yet concern about the viability of religious claims in the public sphere persists, especially in light of the court's overturning of the Religious Freedom Restoration Act, the 1990 bill worked out by a wide coalition of religious groups and passed enthusiastically by Congress. While the decision may reduce clutter around several messy issues, it may also threaten the free exercise of religion, especially as it is expressed in public or seeks to shape public life.

Such matters were already under debate in a number of opinion journals during the past ten months, in part due to the controversy that surrounded the First Things symposium. A further glance at that controversy may clarify key aspects of the sensitive juncture of theological ethics and civil society.

In his introduction to the symposium, First Things editor Richard John Neuhaus wondered whether the judiciary had "declared its independence from morality," especially when morality is "associated with religion." He suggested that many today suspect that "we have reached or are reaching the point where conscientious citizens can no longer give moral assent to the existing regime." Perhaps we must consider our options again -- which range from "noncompliance to resistance to civil disobedience to morally justified revolution."

Discussing such political options is standard fare in the tradition of Christian ethics, but it sounds strident when the echoes of the Oklahoma bombing still resound. At stake is a fundamental perception of American society. Is it true that we are not only surrounded by, but legally dominated by, an antireligious, secularist, amoral perspective?

The spectacle of what most regard as a conservative journal talking about "revolution" against the "existing regime" sparked heated responses. …

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