As we consider Justice Kennedy's successor, we should ask what a conservative judge should believe about the role of the courts.
The religious Right’s quiet decline is one of the more interesting political developments of the last decade. One struggles to believe that, as recently as 2004, the movement was deemed a kingmaker in American politics. White evangelicals were credited that year with George W. Bush’s reelection, and at the time, the political winds seemed with them. Initiatives rejecting same-sex marriage were passing everywhere they appeared on the ballot. A constitutional amendment defining marriage as between one man and one woman was being seriously discussed. President Bush placed two conservative justices on the Supreme Court. New evangelical victories in the culture war seemed likely. Secular Progressives were warning of the coming “American theocracy.”
At the end of 2017, the political world looks very different. While the GOP is riding high once again, (narrowly) controlling the White House and Congress, few would claim that President Trump’s election represented a mandate for the Christian right’s agenda. Even if Roy Moore, whom he endorsed in the recent special election in Alabama, had won a seat in the Senate, Moore’s brand of conservative evangelical politics would not represent the GOP’s future. Well before Moore faced accusations of sexual misconduct, Republican leaders viewed him as an embarrassing anachronism. Although an overwhelming majority of white evangelicals had voted for President Trump, they understood he had little sincere interest in their traditional issues.
Nor do many prominent Republicans show any interest, at this point, in overturning the Supreme Court’s ruling on same-sex marriage. Indeed, smarter GOP leaders undoubtedly realize that the Court did them a favor. Public opinion was turning sharply in favor of gay marriage before the decision in Obergefell v. Hodges (2015). Thus the subject’s departure from the arena of partisan politics was the best possible outcome for elected Republicans in Washington and at the state level. Now on the defensive, conservative Christians can only hope that bakers and florists will not be compelled by the states in which they reside to provide their services to gay weddings.
In light of the religious Right’s failure to win any lasting victories, one may be tempted to understate the movement’s overall importance to contemporary politics. To counter this temptation, one should read Andrew R. Lewis’ fantastic new book, The Rights Turn in Conservative Christian Politics, which demonstrates the profound impact that the Christian Right, despite its many defeats, has had on American political life.
The assistant professor of political science at the University of Cincinnati has written a dense book, full of fascinating details about the debates within conservative Christian circles in the late 20th century, and replete with quantitative opinion data from the general public and the clergy. The book makes a strong case that the recent pivot in conservative Christian politics toward “religious liberty” has been in the works for some time, and that the foundation for this pivot was laid well before the movement began losing its influence. Lewis convincingly argues that abortion politics played an instrumental role in this shift.
Throughout much of American history, it was the Left that predominantly employed the language of individual rights. Conservative Christians, with some notable exceptions, preferred to speak of ordered liberty, communitarianism, or republican virtues. This was largely due to the nature of the times; embattled minorities, not confident majorities, are typically the ones to appeal to individual rights. That being the case, we should not be surprised to see conservative Christians turning to such rhetoric as they began losing their privileged position in American life. Lewis is able, however, to pinpoint this transition: it was brought on by abortion’s becoming the primary focus of conservative Christian politics.
Abortion was not always a major concern of evangelical denominations such as the Southern Baptist Convention before the Supreme Court’s decision in Roe v. Wade (1973), notes Lewis. In fact, at that time Roe was decided, the Southern Baptist Convention formally favored abortion rights. Until the late 1970s, intense opposition to legal abortion was predominantly a Catholic position. There were profound political consequences when conservative evangelicals made abortion their primary political concern. Lewis points out that to justify their political cause in secular terms, the pro-life movement abandoned biblical justifications in favor of rhetoric about rights.
Rather than opposing abortion in the name of safeguarding sexual morality, opponents began more and more to justify it on the basis of a right to life. The National Right to Life Committee, founded in 1967, was a pioneer of this argument. Writes Lewis: “The NRLC focused almost exclusively on the rights of the unborn, drawing connections from the Declaration of Independence, the United Nations’ Universal Declaration of Human Rights, and the U.S. Constitution.”
By the 1990s, conservative Christianity had all but abandoned talk of a moral majority. In its place, the religious Right chose to fight the secular Left using its adversaries’ own style of argument: “Moralizing had given way to liberalizing. Rights and justice have taken precedence over right and wrong.”
The abortion issue led Christian conservatives to frame other concerns in the language of rights, as well. Evangelicals were once skeptical of expansive free speech rights on the grounds that they opened the door to obscenity, blasphemy, and libel. Jerry Falwell famously sued Hustler Magazine, taking his case all the way to the Supreme Court. In subsequent years, however, many evangelicals began taking this First Amendment right very seriously. Free speech was suddenly important to conservative Christians, as they needed to safeguard their ability to picket outside of abortion clinics and engage in other forms of protest.
Lewis provides polling data showing that evangelicals have steadily increased their unqualified support for free speech protections, including protection of speech they disagree with, and makes a persuasive case that the abortion issue was a catalyst for this trend.
The effectiveness of rights-based arguments compared to morality arguments can be seen in the trajectory of public opinion on same-sex marriage. Public attitudes surrounding abortion have held mostly steady in recent decades; the pro-life cause may have even gained some ground. In contrast, opposition to same-sex marriage was rapidly declining well before Obergefell. Unlike abortion, there is no reasonable way to oppose gay marriage on the ground that it violates traditionalists’ rights; opposition to gay marriage was primarily defended on the basis of morality, and such arguments are becoming increasingly ineffectual.
Lewis contends, moreover, that the abortion debate led to other critical changes in American politics, especially the politics of healthcare. It would be disingenuous if conservatives tried to claim that the Gospels dictate a free-market system for distributing medical care. Liberals, in contrast, would be able to argue that if the New Testament were to be a guide to policy, the provision of medical care to all, regardless of anyone’s ability to pay, would be easy to justify biblically. (The parable of the Good Samaritan comes to mind.) Indeed, for much of the 20th century, evangelicals generally supported proposals that would further involve government in the healthcare industry; they were at least no less supportive than the rest of the population.
This changed in the decades following Roe. Although the Supreme Court determined that the state could not deny access to abortion, it did not dictate that it had to pay for the procedure. Thus, every new initiative to expand governmental support for medical care led to questions of whether that support would extend to abortions. As a result, evangelicals joined the ranks of conservatives in opposing every major national healthcare initiative, making the conservative coalition more cohesive.
The author is silent on whether he considers the new evangelical intransigence on healthcare a good thing, but his overall view seems to be that the religious Right’s going in for rights-based arguments is a positive development.
He suggests that this slow transition within conservative Christian circles may usher in a new era of cultural pluralism, one in which all major political coalitions speak in the language of individual rights. He may be correct. On the other hand, if present demographic and cultural trends continue to benefit the secular Left, the long-term result may simply be a role reversal between the two camps, with secularists losing interest in rights-based rhetoric and pushing their own version of communitarian conformity. Lewis acknowledges this possibility, noting that “some political liberals have embraced a new kind of community morality regarding equal treatment for sexual orientation, punishing dissent.”
The Rights Turn is an impressive work of social science, in both its qualitative and quantitative aspects. The work combines Lewis’ encyclopedic knowledge of the Southern Baptist Convention’s internal debates with a strong and compelling analysis of survey data and experimental studies. I do not share his optimism that a “future détente in the culture wars of yesteryear” is around the corner—I suspect that the focus of the culture war will simply change to new issues—but his book provides fresh insights into some of the most contentious political battles of the last generation.