Christian Nation

by Frederic C. Rich

  They were prescient. In addition to competence, experience, and a first-class team around him, the governor had two things that no other state governor did. First was money. The governor’s personal fortune had increased during his return to the private sector, and despite hyperactive philanthropy his foundation had billions of dollars from which to provide funding to public initiatives that would otherwise have strained the state’s chronically overextended budget. The second was his own media base. It wasn’t the broad and ubiquitous behemoth that F3 had become, but Bloomberg LLP was a major global media company with savvy professional journalists and a team of sophisticated web technicians and engineers.

  Just before Thanksgiving, the governor called me on my cell phone. He asked if I could meet him that evening at his town house on 72nd Street. I asked if I should bring Sanjay, and he told me that it was me he wanted to see.

  A formally dressed butler opened the door to the governor’s town house and directed me upstairs. I was amused that, instead of having an English, pseudo-English, or otherwise posh or affected accent, the butler spoke in the thickest Brooklynese. The governor was seventy-four years old, but he looked younger and seemed to me as vigorous as when he had stepped down as mayor of the city. The governor skipped the pleasantries and asked me to leave TW and come work for him. He said he needed a lawyer, but someone who was an experienced and committed foe of the theocratic effort. He said there was no other candidate and that he would pay me whatever I wanted. I surprised myself by saying yes immediately. We talked long into the night, and I was impressed at the deep consideration he had given to the various possible outcomes of the current struggle. He was a man who was thinking ahead. He was also a man who was highly motivated.

  “Greg, these fuckers are monsters … Nazis,” the governor said at one point during the evening. “You gotta understand this is not about religion or rights or law, this is about people. Yesterday I sent the jet to Topeka. You know why? My cousin Maude has a son who lives there. He’s a music teacher, gay, been with his partner for ten years, and they had a little girl together. He’s the nicest young man in the world, and they adore the little girl. Maude’s son is the biological father. A week ago some official from the Kansas Department for Children and Families came to the house with the local sheriff and took the child away. The sheriff and some militia thug said that if they complained or came after the girl, they’d both disappear. It’s the fucking same thing, Greg. Just like what the Jews went through in Germany. Maude was hysterical. So yesterday I sent the jet with five of my bodyguards. They got the boys safely on board first and then went to the DCF and took the little girl at gunpoint.”

  I must have looked astonished.

  “That’s right, just walked in, drew their weapons, and said they were taking the child. I never thought I’d see the day in America. But I’ll tell you, it’s the single best thing I ever did with my money. They’re all back in Fort Washington now with Maude. So we’re drawing the line here, Greg. You understand? Make it legal if you can, but one way or another, it’s not going to happen again, not on my watch.”

  I did not call Sanjay when I left the governor’s. I did not call him that night. I knew I had done the right thing, but part of me felt I was letting Sanjay down. In bed that night, I thought about my decision to leave RCD&S and Emilie’s reaction. This was different, of course, but still I could not shake a bad feeling.

  As soon as I arrived at the office the next morning, I told Sanjay what Bloomberg had asked and what I had decided.

  “I agree,” he said. “There really was no choice. Of course you have to do this. New York and Bloomberg will naturally assume a leadership position among the states in opposition. You can make an enormous difference. You can leverage your skills there in a way that you just cannot do here.”

  I waited for more, which seemed to puzzle him. He resumed, but this seemed more in response to some expectation of mine as opposed to having something he wanted to say.

  “G, you and I have worked so well together because we are somewhat different. You know the world and engage with it. You are happiest when you have a plan. For me, that sort of engagement is … an effort. I am a contemplative person who prefers action that is not directly confrontational. I would rather inspire by personal example. Unlike me, you are a fighter, and the final stage of this fight will be played out in your arena and not mine.”

  He stopped talking.

  “That’s it?” I asked, betraying some annoyance.

  He looked confused, mentally checking whether he had missed something.

  “It seems clear enough to me, G. You have the chance to advise the man who may be our last chance to stop them. Do you disagree?”

  “No … but I did think you might at least try to talk me out of it, you know, to keep me with you at TW.”

  “Ah. Of course I should have said that I want you to stay. I need you, G. I hope you know that I will always need you. Do you know that?” he asked, as if it just occurred to him for the first time that I might not. I was too surprised to answer. He continued. “Shall we perhaps start this conversation over?”

  I could not help but laugh at his suggestion of a do-over. Almost twenty years and I should know better than to expect the conventional niceties from Sanjay. Two decades of his loyal friendship and I should have been well rid of all the old insecurities. I was San’s best friend. Perhaps, come to think of it, his only close friend. Of course he would miss me. And of course he wouldn’t, and shouldn’t, have to say it.

  “San, I’m sorry. Not necessary. Can you imagine, thirty-six years old and an ego still so fragile? Fuck.” I rarely used profanities.

  “G, this is a big moment. I am sorry to treat it as an easy decision.” He paused. “Can I tell you something stupid? Something completely irrational? Sometimes I remember my dreams. I had a dream about us. It was simple. You and I were fireworks, two shells launched at the same time. At first the shell that was me arced higher and burned brighter. Then our trajectories crossed. Yours ascended even higher, and it became clear to me that it would travel much much further. I think, G, that this may be the point where our trajectories cross.”

  I laughed. “San, the world is in big trouble if you are starting to believe in dreams and portents. In the fireworks department, I can assure you that you may be the shell burning brightly, but I’ll never be more than the guy who sets things up and helps light the fuse. But that’s fine with me. And if that’s what Bloomberg wants, then I’m in.”

  ONE OF MY first assignments for the governor was to outline all possible legal theories on which New York and other dissenting states could refuse to recognize and apply The Blessing. On my first day at the governor’s New York City office on Third Avenue, he called me into his room.

  “Greg, you need to understand that the goddamned Blessing will never be enforced in this state as long as I am alive,” said the governor. “You understand? It just won’t. So what I’m asking you is to find me the best legal face to put on it. I don’t care whether it’s perfect, or even right, as a legal matter. But when I say to the world that New York and ten to twenty other states simply refuse to recognize the goddamned thing, I will turn to you to tell the world why I can do that.”

  It was richly ironic that much of the work I needed to do for the governor already had been done by our opponents. A succession of conservative Christian scholars had studied over the past decade the knotty problem of how to ignore or disapply federal laws that they did not like. They, of course, had assumed that federal legislation would be liberal and secular and that evangelical-controlled states would be seeking the means to resist its reach into their jurisdictions. The legal solution that they developed was drawn from the old doctrines of “nullification” and “interposition.” These two related concepts had been much discussed and debated from the earliest days of the republic. Both doctrines held that if the federal government exceeded its authority and enacted unconstitutional laws, then each state—as a free agen
t that had entered in the federal compact delegating to the federal government only those powers set forth in the Constitution—has a fundamental right to declare the federal action unconstitutional and prevent its enforcement in that state. Nullification was the fairly straightforward purported right to declare the offending law unconstitutional and thus to nullify its effect in that state. Interposition was a slightly more complicated version of the same theory, in which a state, or multiple states acting together, had the right to interpose a right they had—such as reserved states’ rights under the Tenth Amendment, the right to petition Congress, or the right to originate a constitutional amendment—in order to prevent the enforcement of an unconstitutional law. Federal laws disliked by the Christian right, such as laws concerning immigration, education, gun control, discrimination, separation of church and state, hate crimes, and privacy—had been the subject of red state nullification and interposition campaigns for years.

  The only problem was that neither one was a valid constitutional doctrine. It had been settled law since the nineteenth century that only the federal courts, and not the state legislatures, were entitled to determine the constitutionality or unconstitutionality of federal legislation. Each of the assertions of nullification or interposition attempted by the southern states prior to the Civil War had failed legally, and the Civil War was thought for many years to have finally put an end to the matter. But the doctrines were revived in the 1950s when ten southern states adopted various versions of nullification and interposition in response to federal civil rights statutes and Supreme Court decisions. The Supreme Court again rejected each such attempt. During the festering decades of the culture wars, these doctrines—repeatedly held to be invalid—were revived with particular energy by the emerging network of evangelical legal “scholars.” Remarkably, in 2010 the old theory of nullification emerged from the shadowy world of the more extreme fundamentalist blogs into mainstream legitimacy when Rob Bishop, a Republican from Utah, with the full support of the House Republican leadership, introduced a bill commonly referred to as the “Repeal Amendment.” This proposed amendment to the Constitution read, “Any provision of law or regulation of the United States may be repealed by the several states, and such repeal shall be effective when the legislatures of two-thirds of the several states approve resolutions for this purpose that particularly describe the same provision or provisions of law or regulation to be repealed.” The amendment, of course, was quietly dropped at the beginning of President Palin’s second term, when the movement had already completed the mental shift from seeing the federal government as the liberal and secular enemy to realizing that the federal government would be the instrument for the realization of their dream of a Christian Nation.

  It was tempting to cite the doctrines of nullification and interposition in rejecting The Blessing and then to brush aside any objections by referring to decades of arguments in support of those doctrines by those now in power. But I couldn’t do that. I was still a lawyer, and I could not advise the governor to act on the basis of a theory that was so clearly invalid. I recoiled at descending to their level. However worthy our ends, they could not justify the means.

  Several days later, Governor Bloomberg, surrounded by the governors of twenty-two other states, stood at the base of the Statue of Liberty in New York harbor and announced that each of their respective state legislatures had passed, and the governors had each signed into law, legislation suspending the application and enforcement of The Blessing in their states. The explanation he gave reflected my solution to the conundrum.

  “For decades,” the governor said, “President Jordan, Justice Moore, most of the members of the Farris Commission, and all the scholars associated with the Christian colleges and law schools proclaimed that each state had the fundamental right to nullify federal legislation that it deemed unconstitutional or improper. They were wrong. They were wrong because it was settled law from the earliest days of the republic, it was settled law after the Civil War, and it was settled law again after the civil rights movement that only the federal courts have the power to determine whether federal legislation is unconstitutional. So instead of following the unlawful path charted by our opponents, we did what the Constitution required. We turned to the federal courts to decide the matter. And, as has been the case so many times before, our federal judges stood firm in favor of the fundamental rights and freedoms of our Constitution, which do and must prevail, no matter how popular, convenient, or compelling the case for overriding them in the name of a purportedly greater good.

  “But then,” he continued, “for the first time in our national life, the other two branches of our federal government refused to recognize and accept the judgment of their third and co-equal branch, the judiciary. Congress turned to its constitutional power of impeachment to remove those judges, even though it was clear to everyone that the judges’ conduct did not constitute ‘treason, bribery, or other high crimes or misdemeanors’ as required by the Constitution. For that particular misdeed by Congress, our Constitution provides no remedy.

  “So,” the governor asked, “where does that leave our states and the majority of the American people whom we represent? It is one of the oldest maxims in law that each right must have a remedy. The principle is so ancient and so fundamental that every law student still learns a bit of legal Latin: Ubi jus ibi remedium—where there is a right, there is a remedy. It is the cornerstone of what lawyers call equity—the doing of the just or fair thing even if strict application of the law itself does not produce a just or fair result. So when the Constitution provides a preferred remedy that is unavailable, then we have the right to an alternative remedy. In this case the preferred remedy—declaration of unconstitutionality by the federal judiciary—has been rendered unavailable by the improper impeachments and threatened impeachments by Congress. So in these circumstances, and these circumstances only, we turn to an alternative remedy, in this case the doctrine called interposition.

  “I know it sounds complicated, but let me give a simple explanation. When an unconstitutional law—in this case the so-called Blessing—threatens to deprive the people of a state of their constitutionally protected rights, and none of the preferred remedies is available, then the state has the right to interpose various protections between the unconstitutional law and the rights that are threatened. The fact that twenty-two state legislatures from all parts of the country have come to exactly the same conclusion provides powerful validation of the justice and fairness of our course of action. Each of the twenty-two states whose governors are standing here with me has declared—based on the decisions of the federal courts rendered prior to the commencement of the administration’s campaign of impeachment and intimidation of federal judges—that the so-called Blessing is invalid and thus has no legal force or effect in any of our states. Second, it shall be a violation of state law in each of our states for any person, including any federal or state law enforcement personnel, to take any action in furtherance of enforcing the so-called Blessing.

  “So,” he concluded, “what does this mean for the citizens of our twenty-two states? It means that non-evangelical Christians and people of all religions can be confident in their right to worship as they please. It means that homosexual men and women and their families can be confident not only that we recognize and respect their civil rights but that we will act vigorously to protect them. It means that your personal sexual behavior in the privacy of your own home is of no interest to our governments. And it means that in this part of America, we still proudly pledge ‘liberty and justice for all’ and not, as the theocrats would have it, ‘liberty and justice for all who believe.’

  “Finally, my fellow governors have asked me to address specifically our fellow Americans residing in the states whose governors are not standing with us here today. We are one country, and we are all confident that the day will come when this attack on our federal court system ceases, when the theocratic program of the current administration is reje
cted and reversed, and America returns to its proud role as a beacon of freedom in the world. But in the meantime, each of you in Kansas and Texas, and Oklahoma and Alabama, and all those other states—each of you is our brother or sister, and we pledge that you will find sanctuary with us if needed. No woman threated with prosecution for adultery, no doctor or family-planning counselor whose life is at risk, no gay couple who lives in dread that their children will be taken from them, no Catholic or Jew or Muslim or Hindu—none of you will be turned away at our borders. You will find sanctuary in each of our states, and all of us here are sworn to do everything possible to attend to your material needs until this madness stops.”

  The press immediately dubbed the twenty-two states opting out of The Blessing as the Secular Bloc, which quickly was shortened to “Sec Bloc.” Most citizens of the Sec Bloc states felt an enormous sense of relief. They wanted to believe that Jordan would be content with the status quo. After all, if the other states wanted to live by The Blessing, they could; perhaps they would just leave the Sec Bloc alone. Moreover, the display of political will demonstrated by the governors and legislatures of the Sec Bloc was the first political success—indeed the first political act of any scale—in opposition to the Christian Nation program since the death of John McCain. It was tempting to believe that the political establishment had woken up and erected for the first time a serious speed bump, and that the limits of the theocratic effort finally had been reached.