Defending Faith

The Politics of the Christian Conservative Legal Movement

Daniel Bennett

• Publisher: University Press of Kansas
• Year: 2017
• Print ISBN: 9780700624607, 9780700624607
• eBook ISBN: 9780700624614
• Topic: Law
• Subtopic: North American History
• Index: Law

When, in Obergefell v. Hodges, the US Supreme Court held that bans on same-sex marriage violate the Constitution, Christian conservative legal organizations (CCLOs) decried the ruling. Foreseeing an “assault against Christians,” Liberty Counsel president Mat Staver declared, “We are entering a cultural civil war.” Many would argue that a cultural war was already well underway; and yet, as this timely book makes clear, the stakes, the forces engaged, and the strategies employed have undergone profound changes in recent years.

In Defending Faith, Daniel Bennett shows how the Christian legal movement (CLM) and its affiliated organizations arrived at this moment in time. He explains how CCLOs advocate for issues central to Christian conservatives, highlights the influence of religious liberty on the CLM’s broader agenda, and reveals how the Christian Right has become accustomed to the courts as a field of battle in today’s culture wars. On one level a book about how the Christian Right mobilized and organized an effective presence on an unavoidable front in battles over social policy, the courtroom, Defending Faith is also a case study of interest groups pursuing common goals while maintaining unique identities. As different as these proliferating groups might be, they are alike in increasingly construing their efforts as a defense of religious freedom against hostile forces throughout American society—and thus as benefitting society as a whole rather than limiting the rights of certain groups.

The first holistic, wide-angle picture of the Christian legal movement in the United States, Bennett’s work tells the story of the growth of a powerful legal community and of the development of legal advocacy as a tool of social and political engagement.

1. The Christian Legal Movement and Its Organizations

In order to defend our views from erosion, we have to be participants.

—James Bopp, The Bopp Law Firm

Given the success of legal advocacy as a tool of engagement in a democratic society, and given the relevance of the Christian legal movement to ongoing legal, political, and cultural debates in the United States, the CLM is worthy of scholars’ focus and attention. Additionally, the annual resources of the groups central to this movement—which, together, amount to tens of millions of dollars—make them serious actors on the stage of legal and cultural conflict. Therefore, determining the issues central to CCLO advocacy, as well as how they advocate for these issues, is a valuable goal. Finally, the multifaceted characteristics of the CLM make it a particularly interesting case for investigation. Social-movements scholars will note that its strategies and struggles mirror those of other historical and contemporary movements. Sociolegal scholars will note its use of the legal system to achieve its goals as well as the ways in which it promotes a specific vision of the law in defense of a specific set of issues. And religion and politics scholars will note its reliance on Christian Right elites and constituents for its inception and growth. Simply put, examining the CLM is a worthy exercise for multiple audiences.

But before moving forward, it is imperative to address some fundamental questions: What exactly is the CLM? How did this movement take shape over time? How is it connected to broader communities in American political activism? As for the groups constituting this movement, how can CCLOs be identified? Who are they? What can these organizations tell us about the state of the movement with which they are affiliated? In answering these questions, I hope to present an authoritative picture of this influential legal community while simultaneously highlighting the relative organizational diversity within it.

In this chapter, I trace the origins and historical development of the CLM, pointing to its roots and roles within the Christian Right and in the broader industry of legal advocacy. I also introduce the organizations that make up this movement, detailing their individual histories and activities as legal interest groups working on behalf of Christian conservatives. Additionally, I discuss the characteristics unique to CCLOs, explaining how to identify these organizations and distinguish them from other interest groups, and discuss why that matters in the first place. Simply put, this chapter walks through the history of the CLM, showing how a novel addition to the traditional catalog of Christian conservative advocacy eventually occupied the epicenter of many landmark legal battles over the role of religion in American society.

THE ORIGINS OF THE CHRISTIAN
LEGAL MOVEMENT

In order to tell the story of the CLM, one must begin by acknowledging a force integral to not only its development but also its very existence: the Christian Right. The Christian Right, described as “a social movement located principally among evangelicals, dedicated to restoring traditional values in public policy,” is no stranger to students and scholars of religion and politics.¹ From its rise in the 1980s to its purported demise following the presidency of George W. Bush to its continued influence in Republican electoral politics, this loose political coalition of Christian conservatives has been a serious player in American politics for several decades. Specifically, the ascendance of social issues—especially abortion—to the national consciousness helped motivate new generations of Christian conservatives to political engagement.²

In the earliest days of its existence and organization, the Christian Right was mostly involved in grassroots lobbying and electoral politics.³ Organizations and entities such as the Moral Majority, Christian Voice, and Religious Roundtable saw tremendous success in the 1980s, culminating with Pat Robertson’s bid for president in 1988 and his eventual establishment of the Christian Coalition. With a generally sympathetic Ronald Reagan in the White House, the Christian Right became a serious force in national, state, and local politics while forging a lasting alliance with the Republican Party. For instance, Ted Cruz, the firebrand senator from Texas, announced his bid for the 2016 Republican nomination for president at Jerry Falwell’s Liberty University, speaking words that echo the vision of the Christian Right of thirty years ago: “Today, roughly half of all born again Christians aren’t voting. They’re staying home.

Imagine instead millions of people of faith all across America coming out to the polls and voting our values.”⁴

For all its efforts on voter mobilization and influencing the traditional electoral process, the Christian Right also came to recognize the value of legal advocacy in pursuing its multifaceted agenda. For social movements, legal advocacy affords opportunities not available in other venues. This is why the earliest beneficiaries of legal mobilization and advocacy tended to be those lacking consistent legislative representation, including African Americans and the disabled.⁵ What is more, as a means of raising the public’s consciousness in support of an issue, legal advocacy need not always generate favorable outcomes in court. At times, in fact, losses can be more beneficial for raising consciousness than victories, which might effectively close the book on a particular issue.⁶

Some argue that the Christian Right has seen its greatest share of success when acting outside existing power structures rather than directing them through legislation. In his book on Christian Right activism, Daniel Hofrenning suggested that the Christian Right is most effective in marginal positions, when it can shape the dialogue from the outside and present its efforts to constituents and supporters as those befitting an embattled minority.⁷ Likewise, in the context of local school boards, Melissa Deckman wrote, “In terms of the intersection of religion and politics, the cases demonstrate that conservative Christians are perhaps more effective as critics of the system in a minority setting than as policymakers with the authority to govern.”⁸

Similarly, in an update to The Politics of Rights, Scheingold acknowledged the special place occupied by the Christian Right in legal advocacy circles: while other conservative legal interest groups generally have trouble making the kind of rights claims central to legal advocacy, the fact that CCLOs can frame their efforts in the language of a persecuted minority comfortably situates them with more “traditional” groups engaging in this activity.⁹ For example, although CCLOs may not be able to oppose same-sex marriage by appealing to rights-based language, they can do so when defending individuals and businesses who object to servicing or otherwise acknowledging such unions. As a result, the nature of legal advocacy—especially its reliance on rights claims—makes it an attractive mechanism for Christian conservative causes.

Though the CLM undeniably has roots in the Christian Right—as the next section will show, several CCLOs saw necessary early support from Christian Right elites—it also benefited from the rise of another legal movement in the United States: the conservative legal movement. This community formed largely to counter the prevalence of political liberalism in the legal profession, especially in legal advocacy and in the legal academy.¹⁰ Indeed, just as the Christian Right saw promise in legal advocacy, so too did political conservatives. Organized around the Federalist Society—founded in 1982 at Yale Law School and now boasting roughly forty thousand members, including four US Supreme Court justices—the conservative legal movement has influenced the trajectory of legal doctrine and the legal profession for decades.¹¹ Despite getting a relatively late start, the conservative legal movement has established itself as an incredibly influential community of legal professionals—for many of the reasons Galanter endorses in his path-breaking essay, the conservative legal movement is an excellent example of “why the haves come out ahead.”¹²

Of course, just as I will show that the CLM is not a homogenous community, neither is the conservative legal movement. In breaking down this movement, Ann Southworth identifies three major constituencies within it: business interests, libertarians, and social conservatives.¹³ Although these constituencies ultimately share much of the same philosophy of constitutional interpretation and basic principles of government, they do not always agree on the substance of policy. Of these constituencies, social conservatives seem to be the third wheel, with one corporate attorney saying, “The religious right . . . makes my skin crawl.”¹⁴ Though Christian conservative lawyers undoubtedly belong to the conservative legal movement, they do not always fit in there; they are, as Kevin den Dulk argues, “in legal culture, but not of it.”¹⁵ Thus, it makes sense to examine this constituency—and its affiliated legal interest groups—separately from other constituencies in the conservative legal movement. This book does exactly that.

Finally, it should be said that while this book focuses mainly on the advocacy of Christian legal interest groups, CCLOs are not the only elements of...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• Acknowledgments
• Introduction
• 1 The Christian Legal Movement and Its Organizations
• 2 Christian Conservative Legal Advocacy by the Issues
• 3 Promoting Religious Freedom in Christian Conservative Legal Advocacy
• 4 Marriage and the Family in Christian Conservative Legal Advocacy
• 5 Defending Life in Christian Conservative Legal Advocacy
• 6 Niche Advocacy in the Christian Legal Movement
• Conclusion
• Appendix
• Notes
• Bibliography
• Index
• Back cover