Despite the Christian Coalition’s best efforts, those pesky federal courts keep upholding the Bill of Rights and the separation of church and state. But not to worry, the group has a plan to fix that: take away the right of the courts to hear those cases in the first place.
This bold gambit, called “court stripping,” is all the rage among the Religious Right these days.
The Religious Right’s theory holds that Congress can simply pass a law removing the jurisdiction of the federal courts in cases dealing with the Pledge of Allegiance, government-sponsored religious displays, school prayer, same-sex marriage, etc. With the courts out of the picture, Congress would then be free to pass whatever laws it wanted.
Court stripping was a hot topic at this year’s Christian Coalition meeting. During a special legislative briefing on Sept. 23, several House members backed the scheme. Indeed, that same day the House passed a measure to strip the courts of their authority to hear cases involving the Pledge. (The measure is expected to face a more skeptical reception in the Senate.)
The Coalition also wants to use court stripping to block federal courts from upholding same-sex marriage and stop them from striking down government-sponsored religious displays, such as the Ten Commandments, in courthouses and public schools.
U.S. Rep. John Hostettler (R-Ind.) talked at length about his bill to deny federal courts the right to hear cases challenging the Defense of Marriage Act, a federal law that bans same-sex marriage. Hostettler said his approach is better than a constitutional amendment, which could take years to pass.
“Congress controls the federal judiciary,” Hostettler said. “If Congress wants to, it can refer all cases to the state courts. Congress can say the federal courts have gotten out of hand. Enough is enough.”
Hostettler also flirted with open defiance of the courts, pointing out that federal judges have limited power to enforce their decisions.
“When the courts make unconstitutional decisions, we should not enforce them,” he told attendees. “Federal courts have no army or navy…. The court can opine, decide, talk about, sing, whatever it wants to do. We’re not saying they can’t do that. At the end of the day, we’re saying the court can’t enforce its opinions.”
A follow-up speaker, U.S. Rep. Robert Aderholdt (R-Ala.) advocated court stripping as a means to protect state-sponsored Ten Commandments displays, such as the one erected by former Alabama Supreme Court Chief Justice Roy Moore in Montgomery. (Americans United and its allies sued Moore over the display, and a federal appeals court ordered it removed. Moore refused and was kicked off the bench. The other judges on the state high court had the monument taken away.)
Since the 1940s, there has been an explosion of church-state cases, Aderholdt said, and he’s tired of judges interpreting the law in this area. Insisting that the United States was founded on the Bible and “not the principles of Islam or some other religion.”
Another speaker, Sheila Cole, executive director of the Republican Study Committee, a group of far-right GOP House members, also pushed the court-stripping strategy.
“Congress is finally saying to the courts, ‘Enough is enough,’” she observed.
Cole stated that impeaching judges who refuse to listen to Congress is also a possibility. In response to a question about impeachment, she said, “There is some interest in that. I don’t think it’s out of the realm of possibility if things keep going the same way.”
Many legal scholars say the Religious Right’s court-stripping scheme is of dubious legality. Michael J. Gerhardt, a professor at William & Mary Law School, has testified twice in Congress recently, arguing that the plan violates the Constitution.
“The critical problem is not with court stripping generally but with the constitutional ramifications of these particular bills,” Gerhardt told Church & State. “Supreme Court precedents on constitutional law may be overridden only by constitutional amendments or the Court itself but not through legislation.”
Court stripping and impeaching judges were not radical enough for some Coalition members. During a question period, one man told Hostettler that in the case of Ten Commandments displays, people should simply refuse to allow the document or monument to be removed, if necessary forming a human barrier around the display.
“It’s time to stand up,” the man groused.
Instead of taking issue with this planned defiance of the federal courts and recommending a lawful course of action, Hostettler endorsed the idea. In a case like that, he said, federal marshals would have to be called out – and woe to any president who let that happen.
“If the president does that,” Hostettler asked, “who will have a say in the next presidential election?”