PART THREE
CHAPTER EIGHT
Political scientists speak of the emergence of regimes or orders that are, at bottom, successful configurations of power at certain moments. The American secular order at the time of Roe v. Wade was one such regime. It emerged in an almost accidental arrangement, the result of layered social conflict. And it relied upon divergent assumptions, norms, and laws with various and sometimes variable rationales.
Part of the tension within the arrangement came from the available political vocabulary. Privacy, religion, secular, public, freedom, conscience, democracy, liberalism, and pluralism—all offered the material to rework public life. The peculiar shape of secularism at midcentury was the result of a constant reframing of terms and concepts within the American political tradition. At the beginning of the secular arrangement, these words took their meaning from the way that Christian bodies exerted influence over public culture in an often-illiberal social space. The expansion of civil liberties, the embrace of cosmopolitan pluralism, and the protection of individual privacy went hand in hand with a rejection of even the mildest forms of public religious authority. The constellation of words emerged through the work of many people, a number of whom were religious.
But the terms of the secular order had already begun to shift by the time of Roe v. Wade, either the beginning of a breakdown or the assumption of an as-yet-unrecognizable form. The trend continued in the subsequent decades, as the vocabulary took on fresh meanings. The legal forms of secularism became especially fluid. Because the secular order emerged out of the language of civil liberties, it was subject to a highly volatile application that drew upon other concepts. One of the main sources of instability, which would grow over time, originated as a conceptual disagreement between liberals and leftists over one of the key notions of American secularism: privacy.
The dispute can be difficult to understand because in contemporary journalistic parlance “liberal” and “left” are often used as synonyms in a way that makes the historical disagreement between the two groups illegible. But among midcentury American leftists the enemy was what they called the establishment or what historians call the liberal establishment. Leftists objected that the liberal establishment focused narrowly on the individual and that the liberal tradition itself too often exalted freedom over equality. Liberalism’s deep attentiveness to political liberty, leftists thought, rendered it unable to elaborate a theory of the good society, and therefore lacking in any positive, purposeful vision through which to pursue change. In contrast to liberals, then, leftists saw themselves as articulating a conception of the collective that thereafter could be expressed in new laws, cultural standards, and social and institutional arrangements.1
Their hostility to liberal individualism made many leftists skeptical of the pillars of American secularism, the doctrine of privacy especially. In creating the secular order, the liberal establishment decentered the dominant place of Christianity and relegated religion to the private realm along with other moral issues that an individual might confront. The goal, as in other disputes, was to minimize social conflict and to maximize personal freedom. But the line between public and private had always been somewhat problematic in a variety of domains—from schooling to presidential politics—and by the 1960s and 1970s, even as the court was drawing upon the language, the distinction between public and private was beginning to break down.
Leftist hostility to the concept of privacy started early. Back in 1959, C. Wright Mills, the radical sociologist who was a guiding light to many New Leftists, had predicted that people would soon connect “personal troubles to public issues.” The civil rights movement had already been doing that, lambasting the racism found in private activities and spaces. Discrimination at lunch counters, by transportation companies, in employment, and in real estate were central subjects of the movement’s concern. Civil rights protestors pointed out that private decisions to exclude based on race reinforced the public power of white supremacy. As the movement mobilized against discrimination, it demanded political protection against what had formerly been considered personal acts or instances of non-state oppression. The efforts finally came to fulfillment in the 1964 Civil Rights Act, which prohibited discrimination in public spaces even if those public spaces were privately owned.2
Others questioned more than just the property-based conception of privacy. They began to interrogate the liberal ideal, put forward by Brandeis, of privacy as the guarantor of an inviolate personality. Brandeis’s mature version of the notion had looked to personal development and individual self-expression as essential components of American diversity. Individual people, unfettered by government regulation, could and would grow in varying ways that furthered the kaleidoscopic patterns of American life. The court’s jurisprudence in the 1940s and 1950s had drawn upon the notion, culminating in Griswold v. Connecticut (1965) by declaring that all individuals could order their private lives as they saw fit.
But looked at from another angle, privacy caused a divided, rather than inviolate, personality. It presumed that certain behaviors or ideas were not subject to political oversight and ought to be kept out of the public eye. Many in the New Left began to assert that only by rejecting the distinction between public and private, only by transforming formerly private matters into issues of public relevance, could a new social order be brought into effect. As early as 1962, the Port Huron Statement spoke of creating a form of politics that would allow individuals to find “meaning in life that is personally authentic” through public struggle. In the leftist conception, politics became a mechanism for unifying the fractured self in an attempt to find personal and psychic wholeness. The liberal concept of privacy stood in the way.3
As the feminist movement began, the impulse to interrogate privacy expanded. Women’s rights activists pointed out that so-called private phenomena such as the woman’s role in the home and in child-rearing were public issues that demanded political responses. The right to privacy in the context of the women’s rights movement took on a less salutary connotation. The concept accepted a demarcated realm in which the state was impotent and simultaneously relegated women to that realm, subject to the whim and control of their husbands. Viewed through the feminist framework, in the words of the theorist Catharine MacKinnon, “A right to privacy looks like an injury got up as a gift.” Women’s rights activists, in response, destabilized the public–private distinction by maintaining, as Carol Hanisch put it in the title of her 1969 essay, “The personal is political.”4
Cultural, intellectual, and political innovations followed. Because many sixties activists presumed that privatization was a psychic burden to be overthrown, people should “let it all hang out,” to use an evocative phrase of the period. Young people rejected the notion that public comportment was necessarily formal, while private matters could be informal. The informal—the private—was the real and needed to be brought into public. Dress became casualized with the proliferation of bell-bottoms, the rejection of bras, the shortening of skirts, and the lengthening of hair in both men and women. Television began to show what had formerly been considered private and therefore taboo: Characters spoke of menopause. Shows depicted the process of childbirth. Mild curse words and flushing toilets became allowable on television. The standards separating public and private behavior began to break down.5
The court itself contributed to the breakdown even as it continued to invoke the right to privacy, and in that way it displayed an ambivalence within the liberalism it espoused. In 1969, in Stanley v. Georgia, the court invalidated many obscenity laws on right-to-privacy grounds. The state of Georgia claimed that in banning obscene material it was merely trying to uphold a public morality. But the court rejected the state’s position. Speaking for his unanimous brethren, Justice Thurgood Marshall alleged that Georgia, under the veil of morality, sought “the right to control the moral content of a person’s thoughts.” “If the First Amendment means anything,” he wrote, “it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch.”6
But in spite of the court’s rhetoric, the effect of the decision was not just to allow individuals to view obscene material in the privacy of their homes. Because it defined freedom as the freedom to do something or to show something, as the historian Lee Ann Wheeler has explained, it allowed “images, messages, and behaviors once considered private” to “saturate public culture.” The liberal freedom to depict the obscene overwhelmed the public’s freedom from obscenity. Freedom to, rather than freedom from, became a controlling understanding on the court.7
The doctrine of privacy began to shift in other ways. As the momentous changes of the period began to compound, many people had trouble accommodating themselves to the emergent reality. Religious conservatives, who tended to join or conflate the nation with their church, especially resisted. The nation was a repository of the ideals of the religious community, they thought. If those ideals declined in national life, the nation itself would decline. The actions of the court, the drift of American society, the transformation of mainline Protestantism into an agent of secular liberalism—all the developments were upsetting to Christian conservatives who saw their religious ideas as integral to national health.
But as conservatives became increasingly agitated by sixties innovations, the destabilization of privacy generated another change. As the sociologist Robert Wuthnow has pointed out, between 1950 and 1970 American religion underwent an extended restructuring. At the beginning of the period, religious groups were riven by sectarian controversy, unable to come to agreement about basic matters of public life. The divisions between the Protestant denominations or the more basic division between Protestants and Catholics led to sectarian infighting that the courts had to manage. By the end of the period, as New Left activists began to question the terms of political debate, the denominational divisions or even the basic division between Protestants and Catholics had given way to a new arrangement. What mattered was no longer a denominational or sectarian identity but whether a person was a liberal or a conservative practitioner of a religious tradition. If a person was liberal, he or she tended to support the direction of the court, the liberalization of American politics, and the expanded freedom within American society. If a person was conservative, the legal, political, and social developments of the previous thirty years were appalling. Suddenly it became apparent that conservative Catholics and conservative Protestants had more connection between themselves than they did with liberals who were in their own tradition.8
As with the emergence of the New Left, the restructuring of American religion began with the civil rights movement in the 1950s. In response to the movement, almost all religious denominations, even in the South, passed explicit statements against racism. But liberals and conservatives divided on the exact strategy to bring about the end of white supremacy. Those who advocated direct action against racism, and especially the liberal clergy who joined civil rights protests, embraced an ethics of social justice that united them across the denominational divide. Those who declined activism and who decried the civil rights protests for what they saw as the protestors’ lawlessness began to align as conservatives who feared that a long-term decline of Christianity was under way within the social order.9
The controversies over religion and school prayer furthered the realignment. At the beginning of the period, Protestants were united in their opposition to Catholics and vice versa. But Protestants began to fracture over church–state separation as the court excluded religion from the public schools. Liberals accepted the growing secularism as a reasonable extension of their principles. Conservatives thought that religion was essential to any education worth the name and that therefore religion must remain in schools. Observers noted in the aftermath of the first school-prayer decision that many of the strongest critics of the court were southern segregationist leaders who first objected to the court’s desegregationist policies and then rejected church–state separation.10
Both conservative responses resulted in a flight from the public schools and a strategy of quasi-privatization. In the South, when the court forced the integration of schools in the 1960s, racial conservatives began to withdraw their children from the public-school system and formed private segregation academies where they could continue the racial status quo. In many cases these private schools were simply a reconstitution of the formerly white public school. In Holmes County, Mississippi, white enrollment in the public schools went from 771 to 28 in the first year of desegregation. The next year the number of white children enrolled fell to zero.11
Christian conservatives were also reconsidering the public-school system. In 1963, after the court struck down Bible reading, Bishop Fred Pierce Carson, the president of the World Methodist Council, predicted a “new movement among Protestants and Catholics for parochial education to protect their children from a growing secularism which now seems to have invaded the courts.” His prediction turned out to be accurate. In tandem with segregation academies, Christian day schools emerged all over the nation. These schools featured conservative religious teaching and the regular religious devotion that was now disallowed in the public schools.12
Because the two developments occurred in tandem it was sometimes difficult to separate them. Some segregation academies were also private Christian day schools. Some were not. If plotted on a Venn diagram, the overlap between the two kinds of schools in the South would have been large. In other parts of the country, perhaps less so. American policy makers wanted to suppress the segregation academies while not necessarily discriminating against religious schools. But it was not always clear how to do that.
In the late 1960s the U.S. Commission on Civil Rights, an independent commission of the federal government, recommended that segregation academies be denied tax exemption as a way to restrain their growth. Shortly after the commission issued its recommendations, a group of black parents in Holmes County, Mississippi, filed suit. They demanded that the Internal Revenue Service (IRS) change the status of the segregation schools in the state.13
After an initial hearing, the U.S. District Court for the District of Columbia temporarily enjoined the IRS from granting tax exemptions to private Mississippi schools that had discriminatory policies. It then permanently enjoined the IRS from doing so.14
The agency followed up by formalizing its policy disallowing tax exemption for segregation academies. The decision raised questions about the status of other nonprofit, private organizations. In the past the courts had ruled that tax exemption involved indirect aid, not direct aid, to an entity. But in ruling against segregation academies the IRS and the district court seemed to suggest that excusing an organization from the burden of taxation offered direct aid to nonprofit organizations. That had disturbing implications for churches and religiously run institutions like hospitals in that it construed tax exemption as public, governmental support for private, religious institutions. If that was true, then it could be said that such aid violated the establishment clause of the First Amendment.15
The government tried to resist the implication. When announcing the policy, IRS Commissioner Randolph W. Thrower went out of his way to say that a church-run school would not come under review as a result of the rule. Churches had a separate status. The IRS’s position was further affirmed the next year when the U.S. Supreme Court rejected a challenge to tax exemptions for religious bodies. In an 8–1 opinion the majority again said that such accommodations offered only indirect aid and helped to avoid entanglement between church and state. Douglas, writing in dissent, complained, “I would suppose that, in common understanding, one of the best ways to ‘establish’ one or more religions is to subsidize them, which a tax exemption does.”16
The IRS’s statements and the court’s affirmation seemed to create a safe harbor for those seeking to privatize the school system. The decision drew segregation academies and Christian day schools still closer together. Observers began to predict that, as Jonathan Spivak and Tom Herman put it in the Wall Street Journal, some segregation academies might “seek church sanctuary” as a way to avoid public scrutiny.17
The actions of the IRS also strengthened a rhetorical realignment between segregationists and Christian conservatives. When segregationists complained about an overweening federal government, their complaints mirrored conservative Christian outrage about the secularist thrust of that same government. Even for conservative Christians who were not racist or who did not want to think of themselves as racist, their shared rhetorical enemy drove the two together. What they supported, both said, was the ability of individuals to freely associate and to privately order their communities. They came up against a public order that was, variously, antiracist or anti-Christian or both, and they sought to dissent from that cultural consensus through the maintenance of private institutions.18
Put succinctly, when the court invoked the right to privacy in Roe v. Wade, the public–private idea was going in two directions. Those on the left sought to break down the distinction in an attempt to create a more liberatory and authentic politics that used the state as an agent of transformation in private life. At the same time, conservatives began to withdraw from public spaces and sought refuge in private ordering and private institutional life that was governed by their own sense of values. The court’s decision in Roe further complicated these developments in ways that defied neat categorical distinction.
The immediate effect of Roe v. Wade was to further the denominational realignment. After the court handed down its decision, conservative Protestants joined Catholics in denouncing the ruling as a violation of moral values and of the basic obligations of the state to protect innocent life. The fundamentalist Billy James Hargis created a pro-life organization, Americans Against Abortion, soon after Roe. Articles with titles like “Murder of Babies: It’s a Major Issue in New York,” “Does a Woman Have a Right to Murder?” and “The Sacrifice of Human Life Goes On” appeared in conservative Protestant publications. The NAE issued a statement in the immediate aftermath of the ruling. “We deplore, in the strongest possible terms,” the statement read, “the decision of the U.S. Supreme Court, which has made it legal to terminate a pregnancy for no better reason than personal convenience or sociological considerations.” Christianity Today announced that “Christians should accustom themselves to the thought that the American state no longer supports, in any meaningful sense, the laws of God, and prepare themselves spiritually for the prospect that it may one day formally repudiate them and turn against those who seek to live by them.”19
Legislators immediately began to work through the implications. In light of the court’s ruling in Roe, conservative religious organizations, notably those that had private hospitals as part of their ministries, feared that they might have to perform abortions. The Catholic church had already prepared for the possibility that the procedure would be made legal. In 1971, as Roe was making its way through the system, the Catholic Health Association was alarmed that previous directives from the bishops were beginning, in its words, “to be interpreted more liberally in certain dioceses” to allow abortive and sterilization procedures. The National Conference of Catholic Bishops responded with a revised version of its “Ethical and Religious Directives for Catholic Health Care Services.” The new statement clearly prohibited all abortions and sterilizations. After ensuring its doctrinal consistency, the Catholic leadership began to lobby legislators.20
Their efforts bore fruit immediately. Senators Frank Church and Adlai Stevenson, both supporters of legalized abortion, sponsored legislation granting doctors and institutions exemption from the procedure if they could invoke their conscience. The legislation was an amendment to the Hill–Burton Act of 1946, which offered federal grants and loans to hospitals if they agreed to abide by rules that were designed to benefit the public. Many private religious hospitals had taken the money and now feared that it bound them to offer abortions or sterilizations as part of their obligation of public benefit. Support for the freedom of conscience amendment swelled from all directions, even from people who were otherwise political enemies. Commonweal explained, “Some are attracted by the basic anti-abortion features of the resolution, but some also see it safeguarding religious freedom and civil rights and perhaps heading off efforts in the direction of a Constitutional amendment.”21
A careful observer would have noticed the shift in the debate. The actual position of religious conservatives was that their ideas were correct and ought to be broadly adopted. But when faced with collective hostility to their principles, and given the dominance of the American secular order at the middle of the twentieth century, conservative leaders turned to the only strategy available to them, namely, appropriating parts of the secular political vocabulary to forestall other uses. They turned to a politics of preemption—the phrase comes from the political scientist Stephen Skowronek—that sought to rearrange the regnant words and ideas into novel forms and thereby open policy avenues not previously available.22
The broad support for the conscience amendment marked a transformation within the Catholic church in particular. The Catholic hierarchy had long been suspicious of a declaration of conscience, seeing it as a Protestant and individualist notion that led to the privatization of religion. When John Courtney Murray first drafted the Statement on Religious Freedom in 1964, he told Pope Paul VI that he sought to bracket the concept of religious freedom from the freedom of conscience because the latter concept was dangerous. But during the debate over the Church Amendment, the Catholic hierarchy had come to see that conscience could be used as a defense against secularism, as a privatizing move that opened space for continued religious privilege.23
Liberals stumbled over the amendment. They saw their concepts being appropriated to ends they opposed but in a way that they were powerless to resist. The ACLU’s somewhat tortured deliberation was instructive. The organization wanted to support conscientious exemption as a matter of principle because such accommodations had been crucial to excusing young men from going to war in Vietnam. But the ACLU Reproductive Freedom Project pointed out that conscientious objection to abortion would constrain access in many ways and would accordingly limit reproductive freedom for women. The freedom to have an abortion collided with the freedom from having to perform an abortion. Freedom to and freedom from again did not work together.24
After much internal discussion the ACLU came out against the amendment. Its reasoning turned on a set of categorical distinctions between individual and corporate conscience and between public and private institutions, all of which were already growing tenuous. The ACLU Women’s Rights Project explained, “Our position is that any institution which serves the public and receives public funds becomes, in effect, an arm of the state and therefore should be required to provide health services to everyone who needs them. . . . Rather than ‘denying freedom of conscience’ we are proposing that institutions supported by public funds are not in fact private and must, therefore, serve the public. This position in no way contradicts the ACLU’s long standing defense of first amendment freedoms, but rather reinforces our position against the establishment of any religion.” The ACLU’s fear was that, by granting private institutions an exemption based on religious doctrine, the proposed legislation would, in effect, privilege the rights of institutions over the rights of individual women. It would also bestow public approval to private religious expression.25
Other critics began to object that the amendment acknowledged only the conscience of antiabortionists. Doctors who worked in religious hospitals and whose conscience allowed or compelled them to perform the procedure received no such protection. Neither did women whose sensibilities allowed them to have an abortion. Nor did taxpayers who demanded public support for the procedure as a matter of social welfare. In congressional debate Senator Jacob K. Javits and Representative Bella Abzug both pointed out the highly selective accommodation that the amendment offered.26
In spite of these objections the Church Amendment was passed by the U.S. Congress in 1973. By the end of the next year twenty-eight states had enacted similar resolutions. In 1977 the U.S. Congress passed the Hyde Amendment, which prohibited public money from being used to pay for abortive procedures. The Hyde Amendment privatized and individualized support for abortion while raising the conscience claims of those who objected to it into a controlling position in matters of public policy.27
In educational desegregation efforts, the public–private confusion went in parallel directions. The state commitment to antidiscrimination also found conservatives pointing to conscience in support of their right to privately order their institutional lives. Critics saw these moves as disingenuous attempts to project their commitments back into the public realm while continuing their racial control. In 1974, a year after Roe, the U.S. Commission on Civil Rights criticized the IRS for still inadequately responding to discrimination in private schools. The following year the IRS issued two changes to address the issue. First, the agency decided that a school had to make a statement rejecting discrimination in its hiring and admissions process. Second, it placed religious schools in the same category as nonreligious schools. “The First Amendment,” the IRS ruled, “does bar governmental interference with mere religious beliefs and opinions, but it does not affect the legal consequences otherwise attending a given practice or action that is not inherently religious.”28
In response, black parents from Holmes County, Mississippi, again sued the agency. They pointed out that the IRS, in spite of its rule changes, continued to award tax exemption to racially discriminatory schools. The U.S. Commission on Civil Rights enumerated at least seven segregation academies in Mississippi that were still receiving tax exemption.29
By 1978 the agency agreed that it was not doing enough. It took a step back to assess its performance and soon issued still more guidelines. It now created two classes of schools, reviewable schools and nonreviewable schools. Reviewable schools would be scrutinized over their tax-exempt status. Nonreviewable schools would not. The IRS defined a reviewable school as one that was established around the time of desegregation and had an insignificant number of minority students, which would include many Christian day schools. Once the agency placed a school in the reviewable category, school administrators had to demonstrate that it was not a segregation academy. They also had to show that they had taken steps to attract and to secure minority students. To be finally moved out of the reviewable status a school needed to have a significant number of minority students, which the agency defined as 20 percent of the student body. If it could not overcome the presumptive burden that it was a vehicle for discrimination, the school risked loss of its tax exemption.30
Conservative Protestants were outraged. They realized that the agency’s commitment to desegregation would infringe upon their rights to privately order themselves in a religious sense. Over the previous decade they had started Christian day schools at a rate of two per day. The rules threatened their institutional viability. They were further upset that the IRS placed many Catholic schools, Jewish day schools, schools for Muslims, and schools for the Amish in the nonreviewable category, partly because they had been created much earlier. Congress received over four hundred thousand letters complaining that religious freedom was being infringed. The IRS received one hundred twenty thousand letters of protest. The agency’s press officer Ellen Murphy admitted, “The response is more than we’ve ever received on any other proposal.”31
Richard Viguerie, the conservative direct-mail pioneer, later said that the rule change “galvanized the Religious Right. It was the spark that ignited the religious right’s involvement in real politics.” Robert Billings, who would soon become a spokesman for Christian schools in their lobbying, agreed. “The IRS ignited the dynamite that had been lying around for years,” he said. The reason it did so, as the conservative political activist Paul Weyrich later said, was that the rule change “shattered the Christian community’s notion that Christians could isolate themselves inside their own institutions and teach what they pleased.”32
Jerry Falwell Sr., the founder of Lynchburg Christian Academy and Lynchburg Baptist College (later Liberty University), was among those shaken by the ruling. Both Falwell’s academy and his college had been overtly segregationist, church-based organizations, founded as extensions of his Thomas Road Baptist Church. By 1978, when the IRS changed its rules, Falwell had relaxed his segregationist stance, but the academy still enrolled only 5 black students out of the 1,147-member student body. He saw immediately that the IRS threatened his growing educational empire.33
The next year, in 1979, Falwell formed the political action group the Moral Majority. The express purpose of the group was to mobilize, in Falwell’s words, “an army of ‘nonbelievers,’ ” which included Catholics, Mormons, and many others with whom Falwell disagreed religiously but who could nevertheless support what he considered “God’s Will for the Nation.” Shortly before the 1980 election Falwell further explained his purposes: “I am seeking to rally together the people of this country who still believe in decency, the home, the family, morality, the free-enterprise system, and all the great ideals that are the cornerstone of this nation.”34
Others quickly signed on, seeing the potential power of the new organization. “We have together, with the Protestants and the Catholics, enough votes to run the country,” the Christian broadcaster Pat Robertson said. “When people say, ‘We’ve had enough,’ we are going to take over.”35
To work effectively, though, the Moral Majority needed a political leader. Falwell cast about before eventually settling on the actor-turned-politician Ronald Reagan as their standard bearer. It was not, at first glance, an obvious match. Reagan was religiously illiterate, divorced, and an infrequent churchgoer. But he had a long history of supporting the causes Falwell championed. In 1964, after the school prayer and Bible-reading decisions, he endorsed constitutional amendments to bring both back to public schools. In 1967, after being elected governor of California, he pledged at a prayer breakfast that “trusting in God for guidance will be an integral part of my administration.” In 1976, while running for president (unsuccessfully), he told a Christian talk-show host that he had “had an experience that could be described as ‘born again.’ ”36
He spoke their language in another way as well. An essential part of Reagan’s political persona was his lamentation of decline. He had long perfected the jeremiad, declaring that the United States had betrayed its principles at some point in the past. The exact moment differed—it was either the 1930s or the 1960s or a long, progressive slide—but he decried again and again the loss of principle as a national disaster. His story worked perfectly with the conservative Christian feeling of political decay, even when he did not specifically invoke God.37
During the 1980 election Reagan sensed the emerging power of the Religious Right and courted them assiduously. In January, before the South Carolina primary, he appeared at Bob Jones University, a fundamentalist college that had been fighting with the IRS since 1971 over its reluctance to admit nonwhites as students to the school. The leaders of the university believed that the Bible forbade interracial dating, marriage, and sex. Because their racial policies were grounded in religious belief, Bob Jones thought that IRS rules interfered with religious practice and violated the First Amendment.38
But the university began to change its policies under pressure. Prior to 1971 it had prohibited nonwhites from enrolling in the school. Between 1971 and 1975, after the IRS began to threaten action, the university admitted married black students, but then only if they had married another nonwhite student. Finally, in May 1975, it removed its discriminatory admissions policy entirely. The administration instituted in its place a rule that prohibited interracial dating and marriage. It also promised to expel any student who violated the policy, advocated a change in policy, or even affiliated with any group that advocated a change. In 1976 the IRS rescinded the university’s tax-exempt status. The university sued.39
The agency said in response it was only following earlier court rulings that regarded tax exemption for nonprofits as an expression of the common law concept of charity. A nonprofit demonstrated its charity by generating some kind of public benefit as a justification for its status. Racially discriminatory schools by definition did not offer a public benefit, the IRS said, and operated contrary to public policy. Bob Jones University and other schools like it were therefore properly denied tax exemption. But the university convinced the U.S. District Court of South Carolina that because its racial policies reflected its religious belief it was immune to the rules for nonreligious, private schools. The District Court set aside the IRS’s determination.40
The government appealed the case to the Court of Appeals for the Fourth Circuit. It had not yet been argued when Reagan decided to speak at the university as part of his 1980 campaign. Reagan used the occasion to address the many religious schools that objected to federal interference. He denounced the actions against Bob Jones, signaling the general solicitousness toward private religious rights that he promised would be a hallmark of his administration. The audience so loved his speech that it gave him, in the characterization of the New York Times, “one of the warmest receptions of his . . . campaign.”41
Reagan systematically worked conservative religious issues into the Republican Party platform. At the Republican National Convention the delegates promised to “halt the unconstitutional regulatory vendetta launched by Mr. Carter’s IRS commissioner against independent schools.” Party officials were annoyed to discover that the action had actually begun under the Republican Richard Nixon, not the Democrat Jimmy Carter, but the point was made regardless. The platform also denounced abortion and promised to appoint judges who would “respect traditional family values and the sanctity of innocent human life.” When he first read the platform Jerry Falwell said with satisfaction that the document “could easily be the constitution of a fundamentalist Baptist Church.”42
Shortly after the convention Reagan appeared before fifteen thousand conservative church leaders in Dallas. He continued his courtship by assuring them that he supported the attempt to bring their ideas into the public. “When I hear the First Amendment used as a reason to keep traditional moral values away from policymaking, I am shocked,” he told them. “The First Amendment was not written to protect the people from religious values, but to protect those values from tyranny.” His succinct disparagement of, in effect, the last forty years of jurisprudence, communicated to evangelicals that he had their back.43
The sweeping nature of his statement surprised news outlets. The New York Times pointed out that before he spoke Reagan sat in the audience as religious leaders railed against the government and the direction of society. He applauded frequently, including during a sermon by the Reverend James Robison, who told the crowd, “I’m sick and tired of hearing about all of the radicals and the perverts and the liberals and the leftists and the Communists coming out of the closet. It’s time for God’s people to come out of the closet.”44
The Catholic church began to mobilize too. In September Humberto Cardinal Medeiros, archbishop of Boston, issued a pastoral letter that was read from the pulpit at many Catholic churches during Sunday Mass. The letter condemned politicians who “make abortions possible by law.” “If you are for true human freedom—and life—you will follow your conscience when you vote,” the letter said. “You will vote to save ‘our children, born and unborn.’ ”45
Howard Phillips, the head of the Conservative Caucus, was jubilant when he heard about the letter. “Cardinal Madeiros has joined the Moral Majority,” he told reporters. Richard Viguerie also lauded the letter’s effect in mobilizing the Christian voter. “It certainly gives legitimacy to the whole process,” he said.46
Two weeks later Reagan appeared at the National Religious Broadcasters Association in Lynchburg, Virginia, where he condemned the expulsion of God from the classroom. Not quite prepared to believe he was being sincere, reporters began to press him about his alliance with the Religious Right. They asked about his statements to the broadcasters, querying him about his position on church and state. In response, he said that he supported church–state separatism. But what that meant was that he opposed state-mandated prayer. He thought voluntary, nonsectarian school prayer was perfectly fine.47
Liberal Christians were especially troubled by Reagan’s alliance with conservatives, but they had no effective political response. News reports began to take note of the organizational difficulties in mainline churches, especially the drop in membership and what the New York Times characterized as a “loss of cohesive purpose.” The best that liberal religious leaders could do was to complain that conservatives regarded themselves as the one true church, which was ironic because that charge had formerly been made by Protestants against Catholics. Now liberal Protestants were saying the same thing about their conservative Protestant counterparts.48
On election night liberal despair would deepen. Reagan won in a landslide. Forty of the forty-three congressmen endorsed by the Moral Majority won their races. Several congressmen targeted by the organization, including George McGovern (D-SD), Birch Bayh (D-IN), and Frank Church (D-ID), lost their seats.
Christian conservatives were jubilant. It was, from their point of view, a complete electoral vindication. Gary Jarmin, the political director of the advocacy group Christian Voice, said that Reagan’s victory “points to the beginning of a new era.” Jerry Falwell called the election “the greatest day for the cause of conservatism and American morality in my adult life.”49
Reagan could not agree more. In his inaugural address he went out of his way to reinforce conservatives’ optimism. He told the crowd that the long period of national decline was coming to an end. The past leaders of the country had forgotten that “we are a nation under God.” He promised to govern in a way that recognized the proper role of the Christian deity in human affairs. Recommitting to God would change moral direction. “Let us begin an era of national renewal,” he said.50
Reagan’s election was obviously a watershed, but it was not exactly clear at first what the policy goals were. Often Reagan’s rhetoric seemed to point in opposite directions at once. He sometimes spoke in defense of private ordering, asserting that communities and individuals ought to be able to control their lives as they saw fit, free of governmental interference. Other times he spoke of the importance of religious values in public policy determinations, in effect claiming that personal religious ideas were justifiably brought into public life to establish moral and political norms. His rhetorical inconsistency mirrored that of the Religious Right, whose leaders could invoke religious freedom from public policy in one sentence and in the next lament the naked public square in which religion no longer formed a protective canopy. The notions of public and private, in conservative rhetoric, became manipulable, even fungible, depending upon the situation.
The court system in the meantime tried to come up with some coherent public-private standard without much success. Shortly after the election the Appeals Court for the Fourth Circuit handed down an opinion against Bob Jones University. The majority upheld the IRS’s decision to change the college’s tax status. Because tax exemption offered a kind of monetary subsidy, it constituted a form of governmental support. If an educational institution contradicted a central component of public policy, such as nondiscrimination, the government could withdraw its support. The court dismissed the university’s insistence that First Amendment rights were being violated. Because taxation necessarily involved some kind of entanglement with religious institutions, the government would be involved in religious life whether it granted or denied tax exemption. Given the conundrum, the agency ought to err on the side of equality.51
Bob Jones immediately appealed to the U.S. Supreme Court. A wide coalition of groups filed amicus briefs urging it to accept the case. The grouping showcased the coalition of the Religious Right. It included the National Association of Evangelicals, the Church of Jesus Christ of Latter-day Saints, the Center for Law and Religious Freedom of the Christian Legal Society, and the Church of God, a Pentecostal group.52
All tended to make overlapping points. The case offered an opportunity to the NAE to counter the “ominous threat” that had risen from governmental policy. The Church of Jesus Christ of Latter-day Saints fretted that enforcing national policy through tax law would erode the rights of religious organizations under the First Amendment. “This question goes to the heart of the very existence of religious organizations,” the Mormons’ brief pointed out, because “the power to tax” included “the power to destroy.”53
For all of the groups the case allowed them to clarify the limits of religious freedom, which they thought should be minimal. Their definition privileged institutional autonomy over individual liberty. That was why the Center for Law and Religious Freedom believed, as it said in its brief, “This issue of racial discrimination is but the thin end of the wedge.” If sustained, the rule would allow governmental intrusion into religious institutions for any number of reasons. Likewise the NAE complained that the lower court’s notion of a “compelling state interest” might lead to a situation in which the right of religious liberty was “totally eclipsed” and religious institutions would become subject to state control.54
After reading the briefs, the court agreed to hear the case. It combined the Bob Jones appeal with a similar petition from Goldsboro Christian Schools, Inc. Located in Goldsboro, North Carolina, the school was established “to conduct an institution or institutions of learning . . . giving special emphasis to the Christian religion and the ethics revealed in the Holy Scriptures.” The IRS had denied tax-exempt status to the school because it had a racially discriminatory admissions policy. It justified the practice by using the so-called Son of Ham interpretation of the Christian scriptures, which held that the races could be traced to Noah’s three sons. His son Ham produced Asians and Africans. His son Shem produced the Hebrews. His son Japheth produced Caucasians. In the Genesis account, Noah put a curse on his son Ham after Ham saw Noah’s nakedness. The darker skin of Asians and Africans was supposed to be a mark of the curse. In Goldsboro’s interpretation, the mixing of these races, especially between the sons of Ham (Asians and Africans) and the others, violated God’s commandment.55
Once the Supreme Court accepted the case, House minority whip and Republican from Mississippi Trent Lott decided to get involved. He filed an amicus brief in support of Bob Jones and Goldsboro, but he also worked behind the scenes. He contacted officials in the Reagan administration, urging them to change policy. When officials briefed Reagan on Lott’s position, the president agreed with Lott. The Department of the Treasury revoked the earlier IRS rule and sought to re-award tax-exempt status to the Christian segregation academies. As the shift in position began to leak out, the administration justified itself by contending that tax policy ought not be used to foster “social aims.”56
Critics erupted. Benjamin Hooks, the president of the NAACP, said the administration’s decision “panders and appeals to the worst instinct of racism in America.” The New York Times editorialized that Reagan supported “tax exempt hate.” In the critical news coverage observers cited two prominent motives: the administration was either racist or it was paying off the Religious Right or both.57
The administration soon informed the court of its intended rule change. It said that the IRS did not possess the authority to remove tax exemption from racially discriminatory, private religious schools. Because the government was now in agreement with Bob Jones, it asked the court to dismiss the case as moot.58
Amicus briefs in support of the government’s former position flowed into the court. The ACLU, the NAACP, and several Jewish organizations, including the AJC and the Anti-Defamation League, urged the High Court to reject Bob Jones’s argument and that of the administration.
Many of the briefs simply echoed the opinion of the lower court. But the NAACP’s brief went further. It feared that to accept Bob Jones’s position would be to affirm a sprawling definition of religious freedom that would have profound consequences in public life. Institutional religious autonomy would allow schools “the right to expand racial discrimination into their secular educational business, a private enterprise they have set up to compete with the public schools.” There was no reason to believe it would stop there. To agree with Bob Jones’s ideas would be “to extend the most stringent forms of First Amendment protection to a religious organization’s conduct of a normally secular business,” including hospitals, charities, and any number of other concerns. The effect would be to allow private religious imperatives, backed by law, into large portions of public life.59
The issues were dense. The court was confused. After oral argument the justices had a hard time agreeing on what the case was about. Was it about religious freedom? Equal protection? Legislative authority? They were all over the map.60
Finally, Chief Justice Warren Burger took the case for himself. Writing for the eight-person majority, he explained that the lower courts were correct in denying tax exemption to the two schools because such institutions must confer public benefit. Since tax exemption affected all taxpayers, who became “indirect and vicarious ‘donors’ ” to the tax-exempt entity, “the institution’s purpose,” Burger wrote, “must not be so at odds with the common community conscience as to undermine any public benefit that might otherwise be conferred.” And because “racial discrimination in education involves deeply and widely accepted views of elementary justice,” Burger continued, the state’s interest in ensuring equality was a compelling national interest.61
Conservatives were incredulous and decried the decision as the logical extension of secularism, especially the court’s invocation of a “common community conscience.” Rather than allowing the privatization of faith in religious communities, the court now penalized the elaboration of religious commitments in separate institutions if those commitments conflicted with public policy or with some overarching national conscience that was simply handed down from on high. Here, they complained, was a positive secularism that established a new orthodoxy and sought to regulate religious commitments even when they occurred in a private setting.
Beverly LaHaye, a prominent Christian activist and head of Concerned Women for America, spoke for many when she said that the case was in keeping with a much longer trend in which “the secularists have been cleverly using the First Amendment to suppress religious freedom.” She connected the case with the decisions about school prayer, Bible reading, obscenity, and other liberalizing decisions. With the court’s affirmation that the government could use taxes to penalize religious institutions, the way was now open for a variety of things that LaHaye found objectionable. What would stop the government from requiring the church to hire homosexuals to maintain tax exemption? What if pedophilia became public policy? What if a suit were brought by the North American Man-Boy Love Association that wanted a doctrinal change internal to a church? Was it not obvious, she asked, what the court would decide?62
Others also criticized the court, not always from the perspective of the Religious Right. In the Harvard Law Review the Yale legal scholar Robert Cover wondered if the court understood what it was doing. In any kind of community, he pointed out, there was an operative set of norms and values, a regulatory principle in social life that Cover considered a kind of law. Inevitably in a pluralistic society these forms of law and these social rules had to be trimmed, pruned, or even killed by the courts. The diverse, wild profusion of cultural values and norms made the procedure both painful and necessary since their unrestrained growth would make national life and national law impossible. The conflict between norms made cases like the one involving Bob Jones an inevitable outcome of pluralistic society, which required careful consideration of the purposes of constitutional government to resolve.
But in the Bob Jones case Cover thought the court had failed to act decisively enough on any discernible principle and without any clear purpose. The problem was the old one of conflicting rights. Insular communities wanted the space to practice their own way of life, a right that was in principle threatened by the court’s decision and left the communities open to intrusion by the state. Racial minorities, by contrast, wanted the court to adopt a redemptive constitutionalism that would prohibit the state subsidization of racism through private organizations. The court satisfied neither group. It allowed that the IRS’s actions were permissible, but it refused to say that the loss of tax exemption was mandated by the Constitution. It declared that IRS regulation was possible simply because Bob Jones and schools like it violated the common community conscience upon which public policy was constructed. By ruling that Bob Jones violated public policy and thus was rightly denied tax exemption, the court left a variety of privately ordered institutions open to the vagaries of change, while not producing a constitutional ruling against the state-subsidization of racism.63
The problem was again traceable to the court’s ambiguous commitments and uncertain priorities. When faced with a case that turned on the distinction between public and private and the freedom of religion, the court seemed unable to resolve its many contradictory imperatives. It found itself at odds and adrift on past opinion and without any kind of constitutional agreement. Unlike the Warren court, with its substantive liberalism, the court under Burger began to labor under the breakdown of categories and the loss of cohesive philosophy. It was a predicable outcome of the somewhat tortured jurisprudence the court had created over the past forty years.
Postsixties activists working toward gay rights also steadily obscured the line between public and private. By the early eighties, gay activists had been aiming for fifteen years to normalize alternative sexualities and alternative arrangements. They had had some success, mostly cultural. Their first task had been to remove the stigma of homosexuality by coming out as gay. Howard Brown, a former New York health commissioner, explained that the act of coming out had social implications. It would, in his words, “help free the generation that comes after us from the dreadful agony of secrecy, the constant need to hide.”64
Because the focus was on normalizing various sexual identities, gay activists joined feminists in their suspicion of the public–private distinction. “It is primarily our public existence, not our right to privacy, which is under assault by the right,” one gay activist explained in 1982. So long as gay people conducted their lives behind closed doors, they were not likely to be harassed. To hold hands or to kiss in a public space, by contrast, involved not just social disapproval but often the threat of arrest or violence.65
Yet some within the gay community thought they saw in the court’s privacy jurisprudence an opening wedge to advance the cause. The primary target from a legal standpoint was the rejection of antisodomy laws, statutes that were once common in many places and were in the 1980s still present and enforceable in about half the states. These laws had various provisions, but they usually forbade anal and oral sex, even in the privacy of a home, sometimes limited to same-sex intercourse or sometimes forbidding any anal or oral sex, even among heterosexual partners. In 1986, three years after Bob Jones, gay activists finally got a case to the U.S. Supreme Court with the contention that antisodomy violated their privacy.
It began a few years earlier, when Michael Hardwick was cited by an Atlanta police officer for throwing away a beer can outside the gay bar at which he worked. The officer thought he had been drinking in public, which violated a local ordinance. Through a clerical error Hardwick missed his court date. A warrant was issued for his arrest. Although the error was quickly corrected and Hardwick paid his fine, the original officer who issued the citation went to Hardwick’s home to serve the now-invalid warrant. He discovered Hardwick having oral sex with another man. Georgia antisodomy law prohibited both oral and anal sex, though it did not distinguish between homosexual and heterosexual sodomy. The officer arrested Hardwick after observing what he characterized as Hardwick’s belligerent attitude and booked him for violating the antisodomy statute. The district attorney chose not to pursue the case since he did not believe that consensual sodomy ought to be a prosecutable offense and, even if he had thought so, the warrant had already expired when the officer entered the residence. But Hardwick was incensed at the entire episode. He sued Michael Bowers, the attorney general of Georgia, in an attempt to get the sodomy law overturned. Eventually the ACLU offered to represent Hardwick in his appeals.66
In oral argument before the U.S. Supreme Court, the attorney for Georgia, Michael E. Hobbs, was forthright about the state’s reasons for defending the sodomy law. Up to that point the court had acknowledged only a few forms of private association that were protected by the right of privacy and were therefore immune from intervention by the state. Hobbs warned that if the court struck down sodomy laws based on a right to privacy, then the family itself would face a redefinition because gays and lesbians would be seen as having the ability to create their own families outside of a heterosexual union. There was the potential, Hobbs said, “for a reshuffling of our society, for a reordering of our society.” The change would make the Constitution an engine of revolution rather than of ordered liberty, and it would undermine the traditional conceptions of family life that had guided the nation. This was again a case of “the collective moral aspirations of the people” and “the collective conscience of our people,” Hobbs told the court. His language echoed that of Chief Justice Warren Burger in the Bob Jones case.67
By the time the case got to the Supreme Court, Hardwick was represented by the Harvard law professor Laurence Tribe, who pressed the court to uphold the principle of its prior opinions. He rejected Georgia’s framing of the case. The state made an issue of the family structure, Tribe told the court, when what they were talking about was sex. The sole issue under dispute was the ability of the state to control the intimate associations of consenting adults. The right to privacy ought to cover those associations.
The justices pressed Tribe on his understanding, notably more skeptical of his position than of Georgia’s. They thought the state had the legitimate ability to regulate moral conduct inside the home, comparing homosexuality with other moral offenses like incest or polygamy. If the state could ban incest, they asked, why could it not ban homosexual liaisons? Tribe responded that there was no agreed-upon harm in homosexual liaisons between consenting adults. And even if there was, they were consenting adults, so they had the liberty to conduct their lives according to their own lights. This was the moral relativism that had been an obvious component of postsixties politics. But several justices continued to be apprehensive about how to limit Tribe’s reasoning. They spoke of a slippery slope that would require them to strike down all moral regulation.
During conference it was apparent that the majority was set to uphold sodomy laws. A minority of justices sought to point out, in Harry Blackmun’s words, “the thought control aspects and the religious underpinnings” of the statutes. The frankly theocratic quality of antisodomy meant that the court should strike down the laws to protect secular liberty, Blackmun said.68
The five-person majority simply waved away Blackmun’s warning and denied that the right to privacy applied to homosexual acts. Gay sex, the court wrote, had no connection to family, marriage, or procreation, which was the whole point of the right to privacy in the majority’s understanding. Since the right did not apply to Michael Hardwick’s sex life, the state was perfectly free to pass laws that expressed moral positions or that grew out of moral principle.69
But in spite of the majority’s claims, the court’s ruling was a departure. In Brandeis’s original conception, the right to privacy was a right of the individual in recognition of an inviolate personality. In Roe the right to privacy allowed the individual woman to make a moral determination in consultation only with her doctor, freed from the moral constraints of those around her and without regard to her marital status. But now the court construed the right to privacy as a collective right within the family that those who remained outside the bonds of a heterosexual union could not access.
The court’s opinion left Blackmun, the author of Roe v. Wade, dismayed. In his dissent he chided his colleagues for their abandonment of both privacy and secularism. “That certain, but by no means all, religious groups condemn the behavior at issue gives the State no license to impose their judgments on the entire citizenry,” he wrote for the four liberal justices. “The legitimacy of secular legislation depends, instead, on whether the State can advance some justification for its law beyond its conformity to religious doctrine. . . . A State can no more punish private behavior because of religious intolerance than it can punish such behavior because of racial animus.”70
To gay activists, the ruling further turned them away from asserting privacy. It was now clear, as Sarah E. Igo has put it, that the right was “just another form of discrimination.” The way forward, according to the literary scholar Deborah Nelson, was the abandonment of privacy and the attempt instead to form “queer publics” and a “transformed public space where identities form, communities are built, and individuals are recognized in new ways.”71
By the middle of the 1980s, in short, both the Religious Right and the postsixties Left had become convinced that private ordering was of no compelling use to their political projects. What both the Bob Jones case and the Georgia sodomy case showed was that each group had only one option left. If the personal was political, all that remained was a battle over culture, an attempt to get the norms of public life to conform to one’s personal ideals; in other words, a culture war.
The culture wars of the 1980s and 1990s are often remembered as a series of angry shouting matches, which they were. But they were shouting matches in the absence of any way to privatize disagreement. They involved, as the sociologist James Davison Hunter has said, “our most fundamental ideas about who we are as Americans,” but they were made possible by a belief that who people are as Americans ought to be the same as who they are as individuals. They turned on a suspicion of privacy and a conflation of privacy with a kind of shame or falseness.72
The court itself was impotent to help as the culture wars began to make themselves felt in law as well. The justices confronted past opinions, their own political divisions, and the divides of the citizenry in the cases that came before them. Part of the problem they faced was the old one of diversity, now made worse and more confounding in the postsixties era. The loss of a cultural center made it especially difficult to understand or to create religious determinations, to decide what counted as religious.
The befuddlement about what was and was not religious had been long-standing but was heightened by sixties activism. Many countercultural figures had long been attracted to an alternative religious orientation that the psychologist Abraham Maslow described in 1964 as “peak experience.” The idea was that there were certain moments when a person’s rational calculation was overwhelmed by a hallucinatory emotional release, often in the context of religious worship and ritual. New Age religions from the 1960s onward sought to find avenues into peak experience, for example, through meditation, incantation, Native American ritual, or mind-altering chemicals.73
As the counterculture went mainstream, religious categories began to expand and in some sense to break down as people of all types began to dabble in formerly fringe ideas and behavior. Gone was the time when Associate Justice Arthur Goldberg could dismiss, as he had in conference in 1963, Black Muslims and “screwball groups” as being outside the parameters of constitutional protection. Given the often-weird, the sprawling, and the bewildering variety of the many religious groups that spun out of the sixties maelstrom, the court increasingly labored with its own sense of real and fake religion.74
Shortly after the court ruled in the Georgia sodomy case, another suit began to make its way through the system, one that would, again, cause problems for the strategy of privatization in a secular political order. The case began in the 1980s as a result of the so-called War on Drugs, which was itself a response to the counterculture. Although federal policy makers began to target the illicit use of marijuana, narcotics, and hallucinogens in the early 1970s, by the time of the Reagan administration the War on Drugs had become connected to a variety of conservative policy initiatives.75
The plaintiff in the case making its way through the courts was a native man named Al Smith, born in 1919 on the Klamath Indian Reservation at the foot of the Cascade Mountains in Oregon. On the reservation as a child, government authorities prohibited Smith from engaging in native ritual or tradition. They instead issued directives that required native children to enroll in Catholic school. Once he graduated from high school, Smith left the reservation, joined the army, and eventually faced dishonorable discharge as a result of his alcoholism. By the time he was forty he had become sober and worked in drug and alcohol treatment centers for the Bureau of Indian Affairs, a section of the Department of the Interior.76
Here is where the problems began. As part of his recovery he began to reconnect with native culture, and he joined the Native American Church, an intertribal and syncretic Christian group that used peyote as a sacrament. A powerful hallucinogen, peyote was listed as a Schedule 1 drug, meaning that the Drug Enforcement Agency considered it highly addictive and medically inutile. It was therefore illegal to use peyote or prescribe it, which brought it into the ambit of the federal government’s War on Drugs.
In 1982, as the Bob Jones case made its way to the U.S. Supreme Court, Smith got a job with the Douglas County Council on Alcohol and Drug Abuse Prevention and Treatment Center. He was required to remain drug free as a condition of his appointment and was warned by his superiors not to ingest peyote. He did so anyhow, within the context of the religious ritual of the Native American Church. When his boss found out, he was in trouble. His superiors asked for his resignation. Smith refused. They offered to let him participate in an Employee Assistance Program for substance abuse. He refused again. He later said, “I did not need rehabilitation for going to church.” In the face of his repeated refusals to address his supposed drug problem, he was fired. And because he was let go with cause, he was denied unemployment assistance by the state of Oregon.77
Smith sued for unemployment benefits, and, initially, he won. At this point, the state attorney general, Dave Frohnmayer, got involved. “We saw it almost completely as a drug case,” Frohnmayer later told the religious studies scholar Carolyn N. Long. He continued,
We knew that there was a First Amendment issue related to it, because it was a religious practice, but it seemed anomalous that someone would be able to use the First Amendment as a sword, not merely as a shield. That is to say, that belief and action may well be protected against some form of criminal prosecution, but the notion that someone can affirmatively claim unemployment compensation, that is, to claim money from taxes that are coercively exacted from other people, for engaging in activity which for anyone else not of that religion would actually violate criminal law, seemed almost nonsensical.78
Led by Frohnmayer, the state appealed all the way to the Oregon Supreme Court, which also ruled in favor of Smith. The state decided to appeal to the U.S. Supreme Court. In his petition to the court, Frohnmayer put the constitutional issue front and center. “Does the Free Exercise Clause compel a state to award unemployment benefits to a drug rehabilitation counselor who agrees to refrain from using illegal drugs as a condition of his employment and is fired for misconduct after illegally ingesting peyote as part of a religious ceremony?” he asked. In putting the issue so starkly, Frohnmayer raised again the question that had bedeviled the court since the Jehovah’s Witness cases and had reemerged in the Bob Jones controversy. What were the limits of religious freedom, and how did those limits function in a pluralistic society?79
After an initial round of briefing and oral argument the High Court remanded the case to the Oregon Supreme Court with a further question. Since the case was about Oregon unemployment compensation, did the sacramental use of illegal drugs violate the state’s drug laws, not just those of the federal government?
The Oregon Supreme Court ruled that Oregon law did prohibit the sacramental use of illegal drugs, but then it struck down that law as violating the free-exercise clause of the First Amendment. The state appealed to the U.S. Supreme Court, which agreed again to hear the case. This time, the court marshaled a 6–3 majority written by the conservative jurist Antonin Scalia.80
The opinion sought to break through the categorical confusion about public and private by departing from past opinions. The court had earlier ruled that the government needed a compelling public reason to infringe on religious practice because religious freedom was a fundamental right. The nondiscrimination policy in the case of Bob Jones University was one such example of a compelling reason. But Scalia rejected that standard. If the government needed a compelling reason to infringe upon religion, then, given the diversity of American religious belief, it would be courting anarchy. Ruling in favor of Al Smith, he wrote, “would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind.” Such exemptions might include compulsory military service, health and safety regulations, compulsory vaccination laws, drug laws, traffic laws, social welfare legislation such as minimum wage laws, child labor laws, animal cruelty laws, environmental protection laws, and equal opportunity laws. “The First Amendment’s protection of religious liberty does not require this,” Scalia wrote.81
His position was startling, given his reputation as a Catholic religious conservative. Scalia put forth a vision of American secularism that privatized religious practice and privileged the power of the state. A state might accommodate religious belief. Or it might not. But that was to be left to the relevant legislature to decide. It could not be constitutionally mandated. The crucial thing was that an individual ought not be allowed simply to hold a religious conviction and then make himself exempt from relevant public law. Scalia even quoted Felix Frankfurter to the effect that “the mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities.” Scalia’s vision was, like Frankfurter’s, one that saw the power of the secular state and the disintegrative possibilities of religious convictions.82
But within Scalia’s reasoning was a presumption of religious privilege that ran against the substantive secularism that Frankfurter supported. “It may be fairly said,” Scalia acknowledged in the opinion, “that leaving accommodation to the political process will place at a relative disadvantage those religious practices that are not widely engaged in.” That was, he said, “an inevitable consequence of democratic government.” His position, which he would later put more explicitly, was that the government was permitted to disregard atheists, polytheists, and New Religion practitioners. Their religious expression was not, for the purposes of the Constitution, considered religion. It was the monotheists that the Founders had in mind when they sought to constitutionally protect free religious exercise.83
His presumption of Judeo-Christian privilege was part of the reason that secular liberals who might otherwise have supported the decision came out against it. To many liberals and leftists, the majority’s reasoning amounted to a denial of Al Smith’s identity as a native American and therefore ran against the embrace of diversity and pluralism that had been so central to the development of liberalism since the 1920s, if not before. The fact that Smith was demanding positive privileges from the state that were not afforded to other nonreligious people, as the Oregon attorney general first pointed out, seemed not to enter the calculations of many who protested from the left of center. Had Smith been a white evangelical Christian, it is likely that they might have seen the matter differently.
Religious conservatives, by contrast, immediately saw the threat of the Smith decision to their movement. They had been demanding public accommodation, even support, for private religious sentiment since the Bob Jones case, if not before. If the Smith decision stood, they would necessarily have a harder time using the law and the courts for their political project.
A groundswell of criticism soon emerged against the decision from all sides. A coalition of liberal and conservative religious groups began to come together to uphold religious freedom as a key constitutional value. The heterogenous character of the critics was astonishing and ought to have been disquieting. The coalition included homeschoolers, church–state separationists, the National Council of Churches, the NAE, the U.S. Catholic bishops, and major Jewish organizations. Overall, sixty-eight religious and civil liberties groups joined the cause.84
The Coalition for the Free Exercise of Religion began to lobby both the states and the federal government. Politicians took notice. A few months after the Smith decision Representative Stephen Solarz (D-NY) introduced a bill entitled the Religious Freedom Restoration Act (RFRA). The prospective act required that “governments should not substantially burden religious exercise without compelling justification.” The primary purpose was to restore the protections of religious freedom that were in line with the court’s earlier jurisprudence. The bill required the courts to use a balancing test to decide between religious freedom and competing government interests.85
When the act was introduced Solarz commented on just how universally people seemed to support it. “It is perhaps not too hyperbolic to suggest that in the history of the Republic, there has rarely been a bill which more closely approximates motherhood and apple pie. . . . In fact, I know, at least so far, of no one who opposes the legislation.” The universal acclamation, in the midst of an otherwise bitter culture war, might have given secularists pause had they thought it through. In the end only a few Catholic and antiabortion groups, fearing that a woman might invoke a right of conscience to get an abortion, mounted any opposition. The bill’s sponsors made a few changes, none of them substantive, and the bill proceeded through the legislative hurdles before being passed by both houses of Congress.86
In 1993 President Bill Clinton signed the RFRA into law. Nineteen states also passed state-level RFRAs. At the signing ceremony for the act Clinton mentioned the rare bipartisan coalition that had come together to pass the bill. “The power of God is such that even in the legislative process,” Clinton said, “miracles can happen.”87