Most people think of the Constitution as a legal document: The original articles establish the structure of our government, while the Bill of Rights are rules for treating each other.
The courts certainly use the Constitution and its amendments to resolve legal issues, and law students are taught to view it in legal terms. But even though I’m a lawyer, I mostly think about it as a social contract. In reality it’s both, but its greatest importance is as a social contract.
In that respect, it’s an agreement we have with each other that, despite our differences, this is how we’re doing things. It works through voluntary compliance; unless we choose to follow it, it’s merely a historical artifact and its words have no practical usefulness.
Oh sure, courts can order compliance, and government agents can enforce it. There are people who don’t want to play by the rules (e.g., criminals), and that’s how you keep them under control. But what happens when a large segment of society says, in effect, “we don’t like the rules, and we’re not going to play by them anymore”?
If that happened in sports, you wouldn’t have a game anymore. If it’s allowed to happen in broader society, you won’t have a government or cohesive society anymore.
There have always been people who challenged society’s existing rules in hopes of changing them. In law school, students are taught to obey precedent, but also that there’s a certain amount of latitude to challenge precedent, but this must be for acceptable reasons and supported by good arguments. In other words, in the legal world, challenging precedent has its own set of rules and discipline.
To challenge a legal rule in the courts, you have to break it, because of the “standing” principle. This means courts don’t decide theoretical issues; there must be an actual dispute. To create a dispute, you break the law; then, when dragged into court as a lawbreaker, you challenge the law. This approach has been used many times by activist lawyers seeking social change through legal change.
This tactic has been used by conservatives and liberals. It was used by civil rights lawyers to strike down Jim Crow laws, and by the right-to-life movement to strike down Roe v. Wade. Many times, GOP legislatures passed unconstitutional laws outlawing abortion, with the express intention of getting into court and trying to overturn Roe v. Wade — a tactic that ultimately succeeded.
The anti-abortion movement isn’t the only powerful conservative movement in America striving to take rights away from other people. There’s also a Christian-supremacy movement, growing in political power, now trying to overturn separation of church and state. Their ultimate aim is to infuse their narrow brand of Christianity into the government that’s over all of us.
The current U.S. Supreme Court, with its conservative majority, seems more open to that. The first inkling came when it struck down a Colorado anti-discrimination ruling against a baker who refused to make a wedding cake for a gay couple, saying his personal right to be a religious bigot superseded society’s interest in preventing discrimination.
Then the Court ruled a public high school’s football coach could hold prayer meetings on the field, lying about the facts of the case in order to justify its ruling. This disturbed some court watchers, because it suggests the court’s factual discipline is yielding to an ideological agenda.
Then came the Dobbs decision overruling Roe v. Wade, with all of the Catholic justices ruling that states can impose the Catholic Church’s abortion doctrine on women, which has the effect of forcing Church doctrine on non-Catholics in those states. (The three non-Catholic justices all dissented.) Now, in the wake of that ruling, conservatives across the country are moving to ban contraceptives, too, which also is a Catholic Church doctrine.
Meanwhile, on the religious front, encouraged by the recent Supreme Court rulings in favor of religious zealots, conservatives are attacking separation of church and state, and trying to enlist courts in this endeavor. Whether the Supreme Court helps them, or turns them away, remains to be seen.
Oklahoma is a deep-red state and a hotbed of fundamentalist religion. It’s where self-designated “pastors” preach that gays should be killed. Recently its legislature directed taxpayer money to a Catholic charter school in defiance of the legal precedents on separation of church and state. The all-Republican Oklahoma state supreme court struck that down (citing an express provision of the state constitution), and proponents seem likely to try their luck with the U.S. Supreme Court (see story here).
Within days, the Oklahoma politician who oversees the state’s public schools ordered the Bible placed in classrooms and Bible teaching integrated into curriculums (see story here). This is flatly unconstitutional under existing law, and he will be instantly sued. But it’s also clearly a strategy on the part of this politician and his supporters to create a legal dispute so they can challenge the status quo on church and state.
But while the tactics are the same as those used by the civil rights movement and other social justice moves, the aims are far less respectable for acceptable. Those earlier movements sought equal rights and treatment — the right to vote, to ride anywhere on the bus, to sit at diner counters like everyone else, to have their children attend the same schools.
The religionists, on the other hand, are trying to take away rights of other citizens — the right to their own religion, and to be free from other people’s religious rules. America’s earliest European settlers came to this continent to escape told Old World’s religious tyranny and conflicts. These people are creating religious conflict and trying to impose religious tyranny.
A couple generations ago, law students and lawyer activists were challenging established legal precedents to create more freedom for significant swathes of American citizens. Now conservatives, using their tactics, are trying to take away freedoms and reinstate legalized discrimination. It isn’t equally meritorious or socially acceptable, and shouldn’t be legally acceptable when courts are faced with these issues.