Christian Nation

by Frederic C. Rich

  When the speech was over, Sanjay was interviewed on the steps of the Capitol building holding a black umbrella and surrounded by a crowd of Jordan campaign workers who had attended the inauguration. His bodyguards shifted nervously from foot to foot. The interviewer asked, “So, Mr. Sharma, you heard the president. Can he do what he wants?” Sanjay did not give a false smile, nor did he look grim. His answer was unequivocal.

  “It cannot be done,” he said. “The Supreme Court stands as the guarantor of our liberties. The Founding Fathers were prescient in understanding that the day might come when the citizens of the country would need to be protected against the religious yearnings of a majority. That’s the difference between pure democracy and constitutional democracy. Even the conservatives on the court will not permit it. They are scholars and serious men and women. They will not let the United States of America join with the likes of Iran and Saudi Arabia in embracing intolerance as a core principle of the state. The essence of this country is diversity and tolerance, not fidelity to a single faith enforced by authoritarian rule. The whole point of having constitutional rights is that they cannot be overridden by the majority. The president is seeking to save face with the Farris Commission, but there is no legislative program that can fulfill his objectives that will be found constitutional by the Supreme Court.”

  Sanjay was wrong. Shortly after the inauguration in January 2017, Associate Justice Ruth Bader Ginsberg, one of the four remaining justices who consistently opposed the conservative approach of Justices Roberts, Scalia, Thomas, Alito, and Cruz, died of a recurrence of pancreatic cancer. At eighty-four, she had overcome the death of her husband, colon cancer, and a previous bout of pancreatic cancer and was the court’s most ardent defender of civil liberty. Ginsberg said repeatedly that only death could take her from the court while Sarah Palin was president. Friends said she had become deeply depressed by the Jordan victory in November and seemingly lost the will to live.

  Jordan’s response to Justice Ginsberg’s death set the tone for his presidency. Three days later, at a press conference in the Rose Garden, with his nominee standing by his side, the president nominated the deposed former chief justice of the Alabama Supreme Court, Roy Moore, to the highest court in the land.

  Roy Moore was one of the great heroes of the evangelical movement but was only vaguely known to the rest of the country. The rest of us learned quickly. Moore was a fundamentalist Christian of the more robust sort, having worked as a cowboy and kickboxer, attributing his pugilistic successes to divine favor and intervention. As a state judge in Alabama, he displayed wooden Ten Commandments plaques in his courtrooms and opened his judicial sessions with prayers, sometimes calling on a clergyman to lead the jury members in conversation with God prior to the start of jury deliberations. He was then elected by the people of Alabama to the position of chief justice of that state’s supreme court.

  To drive home his fundamentalist belief that God was the sole legitimate source of law, and that all civil institutions must be subservient to God’s will, in 2001 he arranged for a five-thousand-pound granite monument to the Ten Commandments to be placed in the rotunda of the state courthouse. The federal courts ordered its removal, and Moore responded that the orders of the federal courts on such a matter had no legitimacy and that he obeyed only the orders of God and the great state of Alabama. The great state of Alabama responded by establishing a judicial commission that proceeded to remove him from office. It is sobering to remember that in 2003, when the federal courts ordered the removal of the monument, 78 percent of Americans polled objected to the federally ordered removal, expressing the view that Judge Moore was entitled to have the Ten Commandments in his courthouse. Seventy-eight percent is a high number and should have been seen by all of us as a foreshadowing of how the non-evangelical middle would tip when it came to questions of separation of church and state.

  “Roy’s Rock” then began its peripatetic travels in the American heartland, appearing at hundreds of Christian conventions and state fairs, including appearances in thirty-one different states in one year alone. Moore became a folk hero to the Christian right, and in 2003 drafted the Constitution Restoration Act, which was finally passed in the early days of President Palin’s second term, opening the door to the theocratic legislative program of the states whose legislatures were already dominated by evangelical forces.

  The response to Jordan’s nomination of Moore was powerful. An ad hoc group of several hundred law professors and federal judges of every political persuasion took out full-page ads in the country’s major newspapers and petitioned the Senate Judiciary Committee to reject Moore. Chief Justice Roberts and Justice Kennedy broke protocol and leaked to a trusted reporter their views that the nomination, if confirmed by the Senate, could “destroy the Court.” “Maybe,” said a leak from the White House in response, “the Court needs a little bit of ‘creative destruction.’ ”

  The nomination proved wildly popular with the nation’s evangelicals. F3 orchestrated a day of national “outrage” at the “snide, sniping, liberal whining about a true American hero.” Senators were deluged with petitions, calls, and e-mails in support of Judge Moore. The day the Senate Judiciary Committee started its hearings, a crowd estimated at 750,000 gathered on the national mall chanting “Take Back the Court,” “Get Out of Our Way,” and “The Time Is Now.”

  When the Senate confirmed Moore, every Democrat and six brave Republicans opposed it. Four of those Republicans failed to achieve their party’s nomination at the end of their terms. The two others were dead by the start of President Jordan’s second term.

  Moore’s tenure on the court had a rocky start. Chief Justice Roberts, who would traditionally administer the two oaths required of an associate justice, reported to the chief administrative officer of the court that he was indisposed, and he instructed the officer to poll the associate justices in order of seniority to see if one of them would be willing to do the job. Justice Thomas administered the oath with no other justice or federal judge of any seniority in attendance. The president responded to this slight by hosting another oath ceremony at the White House the following day. It was, I think, the first time that a wooden cross joined the row of American flags as the backdrop for a White House event. From that day forward, it was how we always saw the president on television and in photographs: the top of the cross over his right shoulder and an American flag over his left.

  The ceremony opened with the president himself administering the oath to Moore a second time and presenting him with a small model of Roy’s Rock. This was a sweet moment for tens of millions of Americans, a symbolic righting of what they regarded as a monstrous wrong. A succession of evangelical senators then delivered speeches in praise of Moore, reminding the nation that the jurisdiction of the federal courts had been limited by Congress as expressly permitted by the Constitution and that the days of the will of the sovereign states, the will of the people, and the will of God being thwarted by an overly active federal judiciary were well and truly over. But Moore’s real job, of course, was to ensure an ideologically pure vote to ensure a sympathetic majority even when, as was feared, one of Justices Alito, Kennedy, Roberts, or Cruz, would join the remaining liberal jurists to overturn the legislation necessary to implement Jordan’s “New Freedom.”

  SOON AFTER JUSTICE GINSBURG’S timely (for Jordan) death, things continued to break in favor of the new administration. Just one week following Justice Moore joining the Supreme Court, the court heard a petition for a writ of certiorari in the case of Gonzales v. Nebraska. The case had been winding its way through the federal judiciary for nearly four years since the Nebraska legislature, during the frenzy of state legislation following President Palin’s signing of the Constitution Restoration Act, had adopted a law constituting a full frontal assault on Roe v. Wade. The Nebraska statute simply outlawed abortion outright regardless of the time during pregnancy or other circumstances. With Roe still the law of the land, this seemed like an empty political
gesture. The Nebraska statute, as expected, was promptly stayed by a federal district court and declared unconstitutional following a short trial. A year later, the Eighth Circuit Court of Appeals upheld that decision. Had the cert petition been received two weeks earlier, it would almost certainly have been denied, but with Moore added to the court, acceptance of the cert petition signaled to the world that at least four of the justices were prepared to overturn Roe (this was because the informal “rule of four” ensures that a hostile majority cannot prevent cases from being brought before the court). When word leaked out from one of Justice Moore’s new clerks that five justices had voted to accept cert, abortion foes around the nation were overjoyed, believing that the era of legalized abortion in America was coming to an end. They were right. The case was heard and decided on an accelerated basis, and during a sitting in early June, the court’s decision in Gonzales v. Nebraska was released. The day both dreaded and longed for by millions of Americans had come. The court, with Justices Scalia, Thomas, Alito, Cruz, and Moore creating the majority, simply reversed its 1973 finding of a right of privacy under the Fourteenth Amendment or otherwise and held that there was no constitutional bar to the Nebraska statute.

  After the Gonzales decision, President Jordan released a short statement expressing his gratification that the dreams and prayers of millions of Americans had been answered. He called the short forty-four-year period during which abortion services had been widely available “our national nightmare.” He noted correctly that since 2009 more Americans had self-identified as pro-life than pro-choice and that finally the federal judiciary had stood aside and acquiesced to the will of the people. “This is a landmark day in America’s history,” he said. “We have in one day taken a first step in creating a more perfect democracy and at the same time removed one of the greatest sources of God’s displeasure with America.”

  Later that night, in one of the first signs that the governor of New York, former New York City mayor Mike Bloomberg, would emerge as a national leader in opposition to the Jordan administration, the governor announced that the Supreme Court’s decision was wrong and “unacceptable,” although he refused then to be baited into stating what that meant. Instead, he reported that New York National Guard troops had been dispatched to provide physical security at every family planning and abortion clinic in the state and he had signed an executive order that day making women from any other state eligible to receive such services in the state of New York. He said that abortion doctors and family planning professionals fleeing other states would be welcomed in New York. He also announced that his charitable foundation had set aside $300 million to provide funding to any woman in the country who could not afford to travel to New York for family planning, counseling, or abortion services.

  In a carefully planned move, the relatively subdued statement from the president contrasted with a frenzy of excitement from F3. We had the first of many demonstrations of the consequences of having a president who personally controlled the nation’s largest and most influential media conglomerate. This was quite different from the nationalization of media we had seen in other countries or even the alignment between newspapers and political parties that had long been the practice in the United Kingdom. Although F3 was often aligned with the Republican Party, it was not under its control. It did, however, act at the direction of the president, who together with Ralph Reed controlled the Faith & Freedom Coalition and who, after the merger with Fox, maintained, together with the Murdochs, a controlling position in the company. As a result, the White House communications director, for the first time in history, was not only orchestrating use of the media platform provided by the presidency but also determining the coverage provided to that president by America’s largest and most influential family of media outlets. This allowed President Jordan to be “presidential” and for F3 to play the role of agent provocateur, urging the people into the streets to show their “intolerance” for baby killers and calling for law enforcement—or, should they fail to act, the Christian militias—to stand on guard to prevent the murder of unborn children.

  The results were predictable. In every state that did not join New York in dispatching National Guard troops to provide security for clinics, the clinics were subjected to vociferous around-the-clock demonstrations and overt threats of violence by armed Christian militias. Many were burned. Within a week, without state legislatures even having to act, providers of abortion and other family planning services had abandoned great swaths of the middle of the country.

  IT WAS THE Gonzales decision that thrust me, personally, into a public role. Sanjay and Walt argued that it was strategically desirable for TW to have a second spokesman. Sanjay, they argued, should continue to speak on political and moral issues. He would continue to be the face, voice, and emotional center of the opposition. But legal matters were different. What was needed there was credibility and authority. I would be promoted as an establishment figure, a lawyer with unimpeachable credentials as a former partner of one of the country’s most prestigious law firms. I would serve as an expert, outside of politics, interpreting for the people the technical implications of the New Freedom legislative program and the actions of the Supreme Court. “Just be yourself,” advised Walt. “Don’t try to be Sanjay.”

  Surprisingly, it was easy. When I stood in front of the cameras, I just pretended that I was briefing a client. One thing a corporate lawyer learns to do well is to take complex legal issues and translate them for a corporate executive—the decision maker—in a way that he or she can understand. My first press conference, with Sanjay and Walt standing at my side, was on the subject of Gonzales. My message was simple. Although the independent press had correctly interpreted the case as allowing the state legislatures to criminalize abortion at any time, including from the point of conception, they had failed to focus on the implications of the manner in which Roe was overturned. The Supreme Court’s decision in Roe was built on decades of Supreme Court jurisprudence that established a constitutional “right to privacy.” This “right” is not listed in the Bill of Rights. The word “privacy” does not appear in the Constitution. Instead, the court developed the concept of a “right to privacy” to capture the overarching constitutional presumption in favor of personal liberty that needed to be taken into account when judging whether laws infringing those liberties were constitutional. The right to choose to have an abortion before the fetus is viable was not the only “right” implied in the Constitution based on the right to privacy. The others included the right to engage in whatever private sexual acts you choose in the privacy of your bedroom, the right to read or view pornography in the privacy of your residence, the right to choose to terminate medical treatment, the right to marry the person you choose, the right to procreate or withhold from procreation, and the right to rear your children as you see fit, including to select the schools they attend. None of these rights is enumerated in the Constitution. But the Supreme Court had held for many years prior to Roe v. Wade that this right to privacy is there: there because the Ninth Amendment makes clear that the list of rights in the Bill of Rights is not exclusive; there because the Bill of Rights itself should be read expansively; and there because the substantive due process rights established by the Fourteenth Amendment extend to protect our personal “liberty.” Take away this “right to privacy,” I pointed out, and the constitutional door was once again open for federal and state governments to legislate in the sphere of sex, family, and personal behavior. Our liberties were in grave danger. No serious scholar disagreed with me, but none of us had a constitutional answer. The president was duly elected, Moore had been duly appointed and confirmed by the Senate, and the Supreme Court had spoken. This was now the law of the land.

  The great irony here was that for decades the far right had argued that when constitutional processes failed us and our personal liberties were at stake, the founders had wisely ensured an armed population to prevent tyranny from again taking root in the New World. B
ut now, without irony, and showing the hypocrisy demonstrated in the Terri Schiavo affair, F3 assured the nation that the only true freedom, the only freedom consistent with the views of our Founding Fathers and our national destiny, was the New Freedom. The law of the land, they said, was clear, and we had no higher duty as citizens than to submit to the rule of law even when we disagreed with the result.

  I do not recollect this in an immodest way, but from that moment on, TW—and not the Democratic Party, the ACLU, or any other political organization—became the primary voice of opposition. And we got their attention. F3 and the president were not amused when I published a paper demonstrating that the right to homeschooling and the right to send your child to a religious, and not public, school were both based on the right to privacy, and that the Supreme Court’s decision opened the way for states to legislate away these parental prerogatives. We had a lively debate at TW about whether we should urge the remaining blue states to do just that.

  For the superstitiously minded, it was tempting at the time to accept that Jordan had benefitted from some sort of divine intervention or, at the least, extraordinary good luck. Had Justice Ginsberg not died at exactly the moment she did, and had Gonzales not become ripe for cert just after Justice Moore’s arrival, the Farris Commission would have had neither the courage nor the legal basis to formulate The Blessing in the way that it did, and American history would have been very different.

  Adam disapproves of this line of thought. He tells me to stick to the story and not waste energy with “what ifs.” I disagree. Didn’t he tell me my job was “What happened? Why did it happen? How could it have happened?” Don’t the “what-ifs” help us to answer the why? Don’t they illuminate the truth about history, the truth that is so deeply unsatisfying to the human mind—that human choices interact uncertainly with random events to determine the course of the story? What if John McCain had not risked America’s future for political advantage and had rejected Sarah Palin as his running mate? He had a choice. What if the cellular membrane holding in the tiny bulge in President McCain’s cerebral artery had not failed that day in Moscow? A random event. What if I, and only a few hundred more like me, had joined Sanjay six years earlier? A choice. What if Justice Ginsberg had survived for another twelve months? A random event. So how could it have happened? Well, it seems to me that you needed to have both. Without the bad choices, the random events would not have mattered. Without the random events, the bad choices would not have led to disaster.