Leadership in the Courts: Reflecting and Accelerating Social Degradation
Cultural conservatives have come to see the judiciary branch as the chief enemy of well-ordered government. Repeatedly the courts have seemed to thwart the wishes of the majority on issues such as flag burning, abortion, school prayer, homosexual rights, and pornography. In each case, national polls have indicated that a majority of the nation has stood for more conservative principles than those handed down by the Court. The symposium in the journal First Things on the Court’s usurpation of popular government struck a responsive chord among many cultural conservatives. But the symposium ignored that the Court is heading where the culture is already leading, and where the cultural gatekeeping institutions have already arrived.
Roe v. Wade: Joining the Sexual Revolution
Take, for instance, the first item in the social conservative indictment against the corrosive influence of the federal government, the Supreme Court's 1973 ruling in Roe v. Wade. In the pre-Roe v. Wade era, the thinking goes, abortion in America was almost always illegal, in many cases unsafe, and above all rare. Roe constituted a sudden and dramatic change, not just in the theory of abortion, but in the practice of abortion. The Court legitimated a practice, say conservatives, and breached a philosophical wall that released the abortion plague on a mostly pro-life American culture. Thus came the revolution, which quickly resulted in an annual abortion rate in excess of one million per year, rising as high as 1.6 million in the late 1980s. Furthermore, absent the Court’s decision, the legal abortion rate would have remained very low.
Not surprisingly, the true story of abortion in America is quite different. In 1972, just prior to Roe, nearly 600,000 legal abortions were performed in the United States. In fact, the national abortion rate had actually increased faster before the High Court’s actions. [Insert graph from Rosenberg’s book] Eighteen states had liberalized their abortion laws in the five years before Roe. California, New York, Washington, Alaska, and Hawaii had a largely unlimited abortion license. Seventy-five leading national organizations had endorsed repeal of all abortion restrictions from 1967-1972, including 28 religious and 21 medical groups -- even the YWCA had joined in. National surveys conducted before and after the landmark abortion decisions demonstrate a conflicted public opinion. On the one hand, in the year leading up to the January 1973 decision, national polls found that 64 percent of Americans believed that abortion should be decided solely by a woman and her physician. On the other hand, most Americans believed that it is against God’s will to destroy any human life, especially that of an unborn baby (63 percent in March 1973), and no one’s life, including unborn children’s, should be taken without permission (55 percent in March 1973). The public’s loyalties were torn between belief in transcendent truth and subjectivism.
Even if conservatives had held a majority on the Court, instead upholding the states’ ability to prohibit or restrict abortions, I argue the abortion rate still would have continued to grow. In fact, the abortion rate probably would have climbed to at least 1,000,000 per year even without Roe, and more likely higher still. Pro-choice citizens would have been ignited to mobilize to change more state laws, and pro-life Americans would have rested on their victory in the Supreme Court. With 70 percent of the population living within a two-hour drive of a state with an abortion license, access to elective abortion would have remained high.
The loss of respect for life, rooted in the sexual revolution of the 1960s, was already sown in the culture before the Supreme Court ever took up the issue. The de-linking of sex and family ties had been unable to sever the unwanted product of the sexual encounter. The culture was quickly embracing the Pill as the first defense against childbirth, but a backstop was needed against “unintended pregnancies.” Elective abortion-on-demand completed the sexual revolution, and the Court ratified that cultural decision. But the unwritten constitution of American culture had to be amended before the Court was able to act. The Court was simply joining the cultural revolution already well underway.
Romer v. Evans: Ratifying the Culture’s View of Sex
In 1996, by a 6 to 3 majority, the Court ruled unconstitutional Colorado’s Amendment 2 to the state constitution, which had prohibited the state and local jurisdictions from adding “sexual orientation” to minority protection statutes. Amendment 2 had been drafted after Denver, Boulder, Aspen, and Aurora enacted laws adding “sexual orientation” to the list of protected civil rights, giving homosexuals a means to use civil rights laws in discrimination claims. The Court majority ruled that the Amendment violated the Equal Protection Clause of the 14th Amendment because the state could not prove a “rational basis” or “legitimate legislative end” for denying homosexuals “the possibility of protection across the board.” The Court’s opinion said that Colorado’s sole reason for Amendment 2 was “animus” towards homosexuals.
One reason that resistance to the decision has been pusillanimous, at best, lies in the conflicted views of the public towards homosexuality. On the one hand, a slim majority of 52 percent of Americans believe that homosexual behavior should be considered an acceptable lifestyle (44 percent believe it should not). On the other hand, 65 percent believe that homosexuals should be allowed to serve in the armed forces (and a plurality of 48 percent believe they should be able to serve openly), 60 percent believe they should be hired as teachers, and 53 percent as clergy. Fifty-seven percent disagree with the statement that homosexuals should not be guaranteed protection from discrimination, and 64 percent of Americans disagree with the statement that homosexual behavior should be against the law. A majority of Americans (51 percent) believe that landlords should have to rent to homosexuals even if they are morally opposed to homosexuality. Thus, the nation is steadily embracing homosexuality as an acceptable way of life.
The cultural predicate for Americans’ growing acceptance of homosexuality lies in the growing assumption that all sexuality is merely a physical act devoid of any other significance. Reduction of the meaning of sex combined with the simultaneous exaltation of sex as the highest experience available to humanity thins any deeper meaning in human existence. The culture is both stripping transcendence from sexuality and affirming it as the highest temporal experience. These growing cultural dogmas lead logically to the Romer decision. Other judicial decisions cannot lag far behind, including the extension of marriage to homosexual couples and possibly polygamous arrangements.
Furthermore, Americans’ overriding fear of judgmentalism prevents them from “imposing their morality on others.” Tolerance has been enthroned as the value against which all others must yield. Where Americans retain an older view of sexuality as a transcendent spiritual bond with myriad social implications, many Americans are unable or unwilling to implement the public implications of this view. They have accepted the cultural judgment that such views are best left in the privacy of one’s bedroom, and not imposed on the secular populace.
Romer did not lead the culture to a fulsome embrace of homosexuality, but simply joined the revolution in sexual mores already underway. While the public retains a superficial reticence to federal civil rights protections for homosexuals, it has already adopted the subjectivist assumptions that paved the way for the Court’s decision. Romer is the inexorable conclusion to be drawn from the cultural privatization of sexuality, as well as the creed of non-judgmentalism.
The Expulsion of School Prayer: Reflecting the Privatization of Religion
In its twin decisions, Engel v. Vitale (1962) and Abington School District v. Schempp (1963), which expelled official prayer and Bible reading from the public schools, the Court has been blamed for the decline in public morality and overriding the public will. On closer examination, it becomes obvious that the Court was simply acting on the growing rejection of transcendence and privatization of religion in the culture.
As in the abortion case, the Court’s actions in Engel and Abington were not unprecedented. Prior to 1962, nine states had already prohibited both state-sponsored prayer and Bible reading, although most had been judicial actions. Another 12 states had no provisions regarding Bible reading, and 23 states had no provisions regarding prayer. Within the states lacking any requirement or prohibition, it is possible that many local jurisdictions had already banned both practices. A 1960 survey of school superintendents revealed that only 42 percent reported that devotional Bible reading was conducted in any schools of their system. It is possible that far less than 42 percent of all classrooms had Bible reading. Unfortunately, no data is available as to how many superintendents permitted officially sponsored prayer within their schools. It is likely, however, that the Supreme Court’s decisions had no effect on a significant number of schools that were already in compliance with the Court’s actions. At a minimum, the Court did not overturn a universal practice in American schools, and more likely ratified a trend already underway.
A cursory examination of the Court’s twin decisions seems to confirm cultural conservatives’ belief that the Court has overridden the majority’s wishes. Public disapproval of the Court’s actions in Engel and Abington has hovered around 70 percent for more than three decades. Instead of reflecting the broader culture, the Court appears to have changed American culture. If the analysis is accurate, it fails to account for the inability of the majority to use the constitutional mechanisms to overrule the Court. Presidents of both parties have continued to put forward, and the Senate, in Republican or Democratic control, has continued to confirm, Justices who are unwilling to overturn the rulings. Attempts by the legislature to amend the Constitution to allow school prayer have failed to generate much beyond simple majorities, and support seems to be losing steam over the years. In 1971, the House fell 28 votes short of the necessary two-thirds majority. The amendment did not get another vote for 17 years, when it fell 44 votes short. Thus, the amendment is losing ground even under a Republican Congress influenced by the rise of the Religious Right, which had been largely silent in the 1960s and 1970s. Efforts in the Senate have been similarly ineffective.
That most of the cultural gatekeeping institutions supported the Engel and Abington decisions when they were first issued, including many mainstream religious institutions, only partially accounts for the majority’s failure to overturn the decisions. A more complete explanation rests in the weak will of the majority and its operational rejection of transcendence through its privatization of religious faith. The relegation of religion to fill the gaps in scientific knowledge and Americans’ growing confidence in science as the arbiter of all truth enfeebled the majority’s attempt to defend religious expression in the public schools. The Court had simply followed the public’s logic in expelling religion from the schools. The public was left with a sense that this was too extreme, but it had lost the paradigm to support its view. The majority had abandoned the very weapons necessary to attack the Court’s judgment that the public square must remain neutral on religious questions. It is unlikely that an America of an earlier era would have failed to overturn Engel and Abington. The Court’s decisions are truly a reflection of the culture, if only in the culture’s inability to resist the Court’s logic.
While it is true that the Court has overstepped its constitutional mandate and misinterpreted the original meaning of the Constitution in the case of abortion, federal civil rights enforcement for homosexuals, and school prayer, its decisions are largely consistent with the popular culture’s fundamental assumptions. Where the public is not yet in agreement with those decisions, the erosion of their older worldview rooted in transcendent truth, and the subsequent adoption of a subjectivist worldview, prevents them from mounting an effective defense. The Court is fanning the passions of the majority by handing down decisions consistent with the majority’s evolving assumptions.
As has already been noted, government does play a role, albeit a lesser one, in shaping the culture. This is especially evident in the Court’s decisions. As has been demonstrated, the Court was largely reflecting the culture and joining movements already underway in the culture. On the other hand, the Court did help to shape the culture by accelerating the pace of those social movements. Where the public is divided -- less in a cultural war and more in a schizophrenic fashion -- between the vestiges of the older worldview rooted in transcendence and its newfound subjectivism, the Court has reinforced the latter and negated the former.
Although the Framers had intended the Court to be a check on the majority’s passions, it has become an accelerator of the passions. Where weak political majorities in various states had prohibited abortion, the Court has denied this expression of belief in transcendence, instead affirming the public’s more subjectivist inclinations for sex without consequences. Where a majority in Colorado had decided against granting homosexuals special legal protections, the Court has affirmed sexuality without boundaries as a constitutional right. Where the majority has sought to acknowledge God in the public schools, the Court has affirmed a religiously denuded public square. Time and again, the Court has come down on the baser side of the public’s divided self, affirming subjectivism, licentiousness, and passion, and denying the people’s remaining belief in transcendence. It has fueled the public’s growing passions and checked the public’s enervating will.
Since the Framers made it very difficult to amend the Constitution or overrule the Court, the effect of these injurious rulings is akin to the accelerator of a car being stuck to the floor. The Court is encouraging the public to “obey its thirst” and “just do it.” It is not as though the majority is left without a brake to stop the passions. But with the accelerator stuck to the floor, using a brake is next to useless. The very mechanisms designed to protect the will from the passions, such as the three-quarters super-majority for a constitutional amendment, now protect the passions, in the form of Supreme Court precedents, from the will. With this inversion of the assumptions that undergirded the old constitutional order, the majority is called upon to enact a super-majority to check its passions -- a super-majority that is perilously difficult to obtain in any age, but especially when the majority’s will is already eroding.
 Gerald N. Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? (Chicago: The University of Chicago Press, 1991), 184. I am indebted to Rosenberg’s work in shaping my understanding of the limits of Court action in effecting cultural change. While an obvious proponent of the cultural changes, Rosenberg adeptly demonstrates that the Court is powerless to start change and can, at best, only encourage its continuation. Absent a broader social movement for the change in question, the Court’s power is sharply muted.
 Rosenberg, 184.
 Gallup, June 1972.
 Michael Barone, Our Country: The Shaping of America from Roosevelt to Reagan (New York: The Free Press, 1990) 756, fn. 14.
 Gallup Poll, February 9, 1999.
 Gallup Poll, November 24, 1996.
 ABC News/Washington Post Poll, August 5, 1996.
 Center for Survey Research, University of Virginia, April 14, 1996.
 Center for Survey Research, UVA, April 14, 1996.
 Philosopher Eric Voegelin’s thesis that gnostic cultures immanentize transcendence applies well to the emerging post-modern view of sexuality. Eric Voegelin, The New Science of Politics (Chicago: University of Chicago Press, 1952).
 Of the nine states with prohibitions on both Bible reading and prayer in public schools, only Arizona had passed legislation to accomplish such. Alaska’s State Board of Education had promulgated regulations to do the same. In California, Louisiana and Wyoming, the State Attorney General had prohibited both, and court decisions had banned them in Illinois, Nebraska, Washington, and Wisconsin.
 R.B. Dierenfield, “The Impact of the Supreme Court Decisions on Religion in Public Schools,” Religious Education (September – October 1967), 448.
 It is interesting to note that compliance with the Court’s decisions has been slow and remains incomplete today. In 1972, one-quarter of schools in the South still offered prayer over the public address system and/or at morning assemblies. Anecdotal evidence suggests that 36 years after the Court’s ban, this practice continues in isolated southern communities, often uncontested by the ACLU. This active defiance may account for part of the public’s acquiescence.
 The Senate voted on a constitutional amendment on school prayer in 1966, voting 49-37 in favor, nine votes short of the necessary two-thirds majority. In 1970, the amendment was successfully added to the Equal Rights Amendment by a 50-20 two-thirds vote, though this was perceived as a killer amendment to the ERA, and not as an affirmation of school prayer. Finally, in 1984 the Senate voted to table one version of a constitutional amendment 81-15, and voted for another 56-44, falling 11 votes short.
 Including the National Council of Churches, the Synagogue Council of America, the United Presbyterian Church, the Baptist Joint Committee on Public Affairs, the Methodist Church, the Episcopal Church, the Union of American Hebrew Congregations, the Seventh Day Adventists, and others.