And Justice For All

October 1997

Dear Friends,

On September 29-30 (which may have come and gone by the time you read this letter), “Focus on the Family” radio will air a discussion of the second-most important topic we have discussed in 20 years of broadcasting. Only the presentation of our Campaign for Righteousness last year, which focused on the Gospel of Jesus Christ, outranks what will be heard on these days. Our guests on the broadcast will be Chuck Colson, constitutional lawyer and founder of Prison Fellowship, and Robert George, attorney and professor at Princeton University. Both are alarmed over the loss of religious liberty occurring in the United States.

Specifically, we will be focusing on the Religious Freedom Restoration Act* (RFRA), which was struck down* by the U.S. Supreme Court on June 25, 1997.1 This legislation had originally sailed through the U.S. House of Representatives in 1993 by a unanimous voice vote2 and was then approved in the Senate 97 to 3.3 Out of 535 legislators, only three opposed it, and I'm told their objections were based on mere technicalities. You can imagine how unusual it is to get liberals and conservatives, Democrats and Republicans, Ted Kennedy and Jesse Helms, Newt Gingrich and David Bonior, and subsequently the president of the United States, to agree on anything—much less a matter with religious overtones. Yet there was hardly a dissenting voice. Clearly, the Religious Freedom Restoration Act was considered vital to the protection of historic liberties guaranteed to our citizens by the U.S. Constitution.

What made RFRA so significant was the steady erosion of religious rights imposed by the courts in recent years. Since the Engel vs. Vitale4 and Abington vs. Schempp5 decisions in 1962-63, which banned teacher-led prayer and Bible reading in public schools, the U.S. Supreme Court has been increasingly hostile to faith and to traditional moral values. Chuck Colson said that America is now ruled by “a runaway judiciary.”6 Some of the Court's other anti-religious decisions include the following

• Stone vs. Graham,7 which prohibited public schools from posting the Ten Commandments on their bulletin boards, despite the fact that those same commandments are depicted on the walls of the Supreme Court Building.
• Roe vs. Wade*,8 which legalized the killing of unborn babies and has now resulted in the deaths of more than 30 million defenseless, voiceless infants. This now amounts to one-eighth the population of the entire United States! In this ruling, the Court disregarded completely the will of the electorate, most of whom in 1973 considered abortion to be a violation of every standard of morality and decency.
• Romer vs. Evans9 struck down an initiative passed by the people of Colorado that would have prohibited the passage of laws and ordinances granting special rights (as opposed to basic civil rights) to homosexuals. In this decision, Justice Kennedy said, “Laws of the kind now before us raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected.”10 In other words, Justice Kennedy was lecturing the people of Colorado for their bias and bigotry toward homosexuals. By declaring their view unconstitutional, the Court trivialized a moral conviction held by Christians and Jews for centuries. It also rendered Americans unable to protect themselves from organized efforts to gain advantages and preferences in the workplace.
• Edwards vs. Aguillard,11 in which the Court rejected a Louisiana state law that required public schools that teach evolution to also teach creation science.
• Lee vs. Weisman,12 in which the court ruled that public school officials cannot include prayer as part of a graduation ceremony, and cannot specifically select a religious participant to say a prayer during a graduation ceremony, even if the prayer is nonsectarian.
• Reno vs. American Civil Liberties Union,13 in which the Court ruled this summer that the Communications Decency Act is unconstitutional. This legislation was intended to help parents protect their children from the bewildering assortment of obscenity and violent pornography that saturates the Internet. Now they are exposed to degrading images that twist and warp their young minds (and older ones too).
• Planned Parenthood vs. Casey*14 stands now as one of the most dangerous Supreme Court decisions of all time. Writing for the majority, Justices O'Connor, Souter and Kennedy* said, “At the heart of liberty is the right to define one's own concept of existence, of meaning of the universe and the mystery of human life.” With those words, the Court discarded its historic reliance on “a law beyond the law,” or a transcendent standard. The Founding Fathers based the Constitution on the understanding that human affairs are governed by the moral law of the universe or what they termed “The Law of Nature and of Nature's God.” That's why the Declaration of Independence reads, “All men are endowed by their Creator with certain unalienable Rights . . .” Human dignity and freedom are precious gifts from God, rather than from government or its leaders. The Creator is also the ultimate definer of right and wrong. But after the Casey decision, this understanding of the moral absolutes was supplanted by “the right to define one's own concept of existence, of meaning of the universe and the mystery of human life.”

It brings to mind the words of King Solomon, who wrote, “There is a way that seems right to a man, but in the end it leads to death” (Proverbs 14:12, NIV).

Columnist John Leo said of the Casey ruling, “This `mystery passage' [as it has become known] can be cited easily next time to justify suicide clinics, gay marriage, polygamy, inter-species marriage [such as marrying one's dog or cat] or whatever new individual right the court feels like inventing. We are moving firmly into the court's post-constitutional phase.”15

Chuck Colson agreed, saying the mystery passage could mean absolutely anything to a future court—including the right to marry your toaster if you wish.16

The bottom line of the Casey decision is how we define reality. The new definition flows from a “postmodern” philosophy that acknowledges nothing right nor wrong, nothing moral nor immoral. Truth does not exist and there are no absolutes that transcend time. Everything is relative and subject to individual interpretation. For the U.S. Supreme Court to descend into this abyss of moral relativism is disastrous. The Constitution has been the shield, the defender, of basic liberties for 210 years based on “The Law of Nature and of Nature's God.” Now, according to Justice Kennedy and five of his colleagues, its meaning has become nothing more predictable than the shifting sand of individual opinion.

* * *

There have been many other decisions by the Supreme Court that have undermined religious liberty and traditional morality. Added to them, of course, are thousands of anti-religious rulings by lower courts in recent years. Federal and state judges have not only narrowed and weakened the expression of faith, but they have blatantly overridden the will of the people in many statewide referenda. How often in recent years has a ballot initiative received a majority vote, only to be struck down by a single liberal judge on the flimsiest of legal evidence? It would take a book to list the examples that come to mind.

Let me refer to only one in which I had a personal stake. In 1987, we worked tirelessly to get the state Legislature in California to pass a bill granting parents the right to be notified before their minors could get an abortion. It is outrageous that a 13-year-old girl can undergo this procedure, often under intense pressure from Planned Parenthood or a pro-abortion school counselor, without any awareness or opportunity to influence the decision by mothers and fathers. Any subsequent bleeding, infection or psychological impairment in the child escapes the parents’ recognition and intervention. It is difficult to understand why that situation is still tolerated in these United States.

The pressing need for parental consent was discussed in Congress just a few weeks ago. The concern focused on a school teacher in Illinois who had sexually molested a 13-year-old student, and then took her to a clinic to get a shot of Depo-Provera, a contraceptive, so he could keep on having sex with her!17 According to current law, however, her parents were not permitted to be told of the medical visit.

In our effort to fight this kind of intrusion, we announced a rally to be held at the California State Capitol back in 1987. More people attended, I’m told, than any similar rally in California history. Feeling the heat, the legislature passed a parental-consent law, which was signed by the then-Governor George Deukmejian. But true to form, an injunction against the law was immediately issued by Judge Morton Colvin.18 Ten years and dozens of legal battles later, the state Supreme Court managed to invent a provision in the state constitution that denied parents the right to know when their minors were about to receive an abortion, making the law unconstitutional.19 Parents are the losers again.

Chief Justice Ronald M. George said of his role in this ruling, “. . . I assigned it [the writing of this decision] to myself as a sign I would not be intimidated.”20 How’s that for judicial arrogance? It doesn’t matter what mothers and fathers want for their children. This powerful justice actually boasted about ignoring their protests and forcing his will on them.

It is the unborn child that continues to pay the ultimate price for this kind of hubris. This past summer, judges in Alaska,21 Arizona,22 Michigan,23 Nebraska24 and Rhode Island25 either issued injunctions against bans on the horrible procedure known as “partial birth abortion” or declared them unconstitutional.

What is at stake in these judicial usurpations is the very right to self-government by the people of this great land. Increasingly, a small group of elitist, black-robed activists in the federal courts, who are appointed for life and are therefore unaccountable to anyone, have imposed their will on the electorate. Their grab for power has become known as “the Imperial Court,” and it threatens not only religious liberties, but the very democratic system of government itself.

Let me illustrate further how this power-grab works. I’m sure many of my readers will remember the terrible struggle to defeat the Equal Rights Amendment (ERA) in the 1970s. Congress passed it and sent it to state legislatures, where it was quickly ratified by 35 of the 38 states needed for approval. Phyllis Schlafly and her allies then flew into action and stopped it cold in its tracks. In so doing they took on the power structure of the nation, including Phil Donahue and the rest of the media and beat them at their own game. The ERA never passed in another state and fell three short of the number needed for ratification. Radical feminists tried everything to revive it, including extending the deadline in hopes of getting recalcitrant legislators voted out of office. Nevertheless, they failed and the ERA died.26

But did it really? Hardly. The court simply enacted all the critical components of the amendment by judicial decree. This fact was admitted in a surprisingly candid statement made by Justice Ruth Bader Ginsburg this year. Speaking at the University of Virginia law school, she said while she still wished the ERA could be revived and passed as “a symbol” for her granddaughter, it really didn’t matter because “there is no practical difference between what has evolved and the ERA.”27

There it is in living color. Since the common people and their representatives were too stupid to enact needed reforms, the judges simply imposed them on society. And how do they justify such over-reaching decisions? Well, they say, the Constitution is an “organic” document—which is another way of saying that its meaning is whatever judges claim it to be at a particular moment. Now, every time the Court convenes, its like a mini-constitutional convention where the original document is subject to revision.

The net effect is that our elected representatives handle mostly trivial matters, especially those that help them remain in office, while a tiny cadre of unelected judges decides the sweeping moral and social issues of the day. And the liberal media stand and applaud the most radical jurists, such as the late Justice William Brennan, who found things in the Constitution that would have horrified the men who wrote it.

Now here’s the point of my letter: concern about the Imperial Court reached a boiling point in Congress after yet another assault on religious freedom in a case known as Employment Division of Oregon vs. Smith.28 The Supreme Court’s decision in that case unceremoniously canceled a historic precedent that had protected religious liberties for two centuries. It said that they couldn’t be undermined unless there was a “compelling state interest” to weaken them. Once that safeguard was removed, however, the rights to worship and express one’s religious beliefs were at risk. They could be denied at the whim of any future court. It was this situation that alarmed members of Congress, and explains their near unanimous vote to restore the Religious Freedom Restoration Act (RFRA), mentioned earlier. That legislation represented a dramatic effort to reassert congressional prerogatives and undo the damage done to religious liberty by the judiciary.

Nevertheless, on July 25, 1997, the Supreme Court, in a 6-3 decision, threw RFRA back in the faces of our representatives. Justice Kennedy (remember him?), writing for the majority, said Congress had no right to enlarge upon or make substantive definitions of religious liberty. Can you imagine such a ruling in the 1960s when the Congress was passing civil rights legislation to guarantee the rights of African-Americans? By declaring RFRA unconstitutional, the Court created a constitutional crisis between two branches of government, each claiming authority over the place of religion in society and disagreeing emphatically over how to use it.

Perhaps it is now clear why I said the issue before us represents the second-most important topic we’ve ever addressed. The Court’s ruling will affect the way your children, grandchildren and future generations are permitted to worship in this nation. Chuck Colson and Professor George, both constitutional attorneys, said if RFRA is permitted to die, we can expect these and many other losses of religious liberty in the days ahead:

STATE PRISONS:

• religious activities can immediately be curbed
• evangelical Bible studies can be prohibited
• Jewish prisoners can be forbidden to wear yarmulkes because they look like “gang gear”
• Catholic prisoners can be denied access to priests

SCHOOLS:

• Catholic students can be forbidden to wear the rosary around their necks

CHRISTIAN BUSINESSES/ORGANIZATIONS:

• can be required to hire openly homosexual employees
• will be unable to fire employees for unbiblical conduct

CHURCHES:

• tithes and contributions can be reclaimed by bankruptcy courts29

Echoing some of these concerns, Steven McFarland of the Center for Law and Religious Freedom, said of the RFRA decision, “The losers in today’s ruling include students who wish to opt out of objectionable classroom assignments on religious grounds; . . . public employees who are forced to participate in an in-service training class contrary to their religious convictions; religious hospitals whose accreditation depends on training medical students in abortion or performing abortion; churches that cannot modify their sanctuary buildings because of a city landmarking or zoning board; prison inmates who want access to chapel services but are prohibited from attending.” 30

These and other assaults on religious liberty need not happen! Congress has the power to limit the authority of the entire court system, and even to ignore the Supreme Court’s outrageous RFRA decision. Something similar occurred in 1857, when the Supreme Court issued its disgraceful Dred Scott decision, confirming the constitutionality of slavery.31 Abraham Lincoln later rejected that ruling and sent the Emancipation Proclamation to Congress as our Constitution’s 13th amendment, where it passed in defiance of the Court.32 In that instance, the executive and legislative branches simply refused to acknowledge the decision of the judiciary. There have been other examples of this assertion of power, and we believe it is time for our representatives to assert themselves again. Indeed, several courageous congressmen and senators (Rep. Charles Canady, R-Fla.; Rep. Henry Hyde, R-Ill.; and Sen. John Ashcroft, R-Mo., among others) are determined to overturn the Court’s RFRA decision and will be holding related hearings beginning this month. 33

Colson considers it urgent that they respond. He said, “The question today is whether Congress will fully surrender itself to this imperial judiciary, or will it finally say, ‘Enough!’ Indeed, the time has come for Congress to call into question the very legitimacy of the Supreme Court’s status as sole and final arbiter of what the Constitution means . . . The one thing Congress must not do is duck.”34

If the Congress does rise to the occasion, it will have plenty of support from leaders within the Christian community. On February 8, 1997, a meeting was held in Washington, D.C., and hosted by Chuck Colson and Father Richard John Neuhaus. It included 12 leaders whose names you might recognize. I was privileged to be among them. The decision that day, which was bathed in prayer, was for us to prepare a statement exposing the Imperial Court and decrying its assault on religious liberty. The statement that came from that decision, entitled “We Hold These Truths: A Statement of Christian Conscience and Citizenship,” was subsequently signed by 43 religious leaders, comprising a strikingly broad base of theological and philosophical viewpoints. The signators represent prominent evangelical, Orthodox, mainline Protestant and Catholic institutions (including three Cardinals). Such a coalition has agreed on virtually nothing else of significance, and yet we found common cause in the message of this document. (The names of the 43 signers appear at the end of this letter.)

Mark Noll, the eminent historian of American religion at Wheaton College, said, “Beyond doubt, this statement is without precedent in American history . . . I believe one would have to go back to the mid-19th century and the controversy over slavery to find a comparable sense of urgency about moral and constitutional crisis.”35

“We Hold These Truths” was released to the nation on July 4, 1997, where it was greeted with disinterest by the media. And why should we have expected otherwise? The press has not been sympathetic to the growing assault on religious liberty to this point, and they have little inclination to publicize its cause now.

If you would like to have a copy of the statement, just write Focus on the Family. Perhaps you can tuck in a gift to help us pay for this distribution, which will be quite expensive for the ministry. There is no charge, however.

I hope some of you are wondering what you can do to help address this moral crisis. First, I hope you will write your representatives and senators, expressing concern about the RFRA decision and asking Congress to deal with the issue. They have the constitutional authority to defend our liberties. It is time to use it.

Second, make this situation a matter of prayer in the days ahead. God has never been checkmated by man, and He will not be outmaneuvered now. If His people will turn to Him in repentance and humility, asking for mercy, He has promised to hear our prayer from heaven and heal our land.

Third, it is becoming all the more significant whom we elect to Congress which holds the constitutional authority to confirm judicial appointments and limit the excesses of the courts. So far, the U.S. Senate has wimped-out on this obligation. Not one Clinton judicial appointee on whom the Senate has voted has been refused confirmation, regardless of how liberal his or her record has been.36 Believe me, some of these nominees have been horrible and now sit on the federal bench. Justice Ginsberg, for example, was an ACLU official in her earlier life37 and may be the most liberal justice ever to be put on the Supreme Court. Nevertheless, she was confirmed by the Senate 96-3.38

We must send men and women to Washington who understand why they are there and what they are supposed to do with the authority they have been given. The only way that will happen is if believers get involved in the electoral process. Unfortunately, almost one quarter of Christians are not even registered to vote, and of those who are, many don’t go to the polls. Of those who do, many aren’t adequately informed. This is a disgrace and a dereliction of our duty to be salt and light in our world. Let’s use the influence granted to us by the Constitution and elect representatives, whether Democrat, Republican or Independent, who believe in fundamental liberties and traditional standards of morality. Some who are reading these words might even be inspired to run for public office. Nothing would please me more.

Fourth, I hope you will urge your pastors and denominational heads to join the effort to reassert religious liberties in this culture. Our freedoms literally hang in the balance, especially those that motivated the pilgrims to come to this land in the first place. We would love to hear from ministers who share this concern.

It would please us if you would write, too. This is the time of year when we especially need the involvement and the financial support of our friends. Just a word of encouragement and a prayer would be appreciated.

Your friend in Christ,

James C. Dobson, Ph.D.
President

P.S. There is some good news to share about the issue I've discussed. The Free Congress Foundation, a Washington, D.C., think tank, has started the Judicial Selection Monitoring Project*, which is headed by a young activist lawyer named Thomas Jipping, in order to draw attention to the problem. Incredibly, more than 360 organizations around the country, including Focus on the Family, have joined this coalition, whose purpose is to pressure the president not to nominate activist judges, to warn senators not to confirm them if the president does so, and to demand roll call votes on every name that comes before the Senate for confirmation. Partially because of the effective work of the project, the list of liberal candidates yet unconfirmed is growing, and the White House is beginning to howl about it. For the first time it seems that Congress may be feeling the heat about activist judges and may be willing to stand up to the White House and their friends, the liberal American Bar Association.

*(Note: Referrals to Web sites not produced by Focus on the Family are for informational purposes only and do not necessarily constitute an endorsement of the sites' content.)