When a Georgia federal judge in January ordered the removal of stickers in science textbooks labeling evolution "a theory, not a fact,'' many liberals cheered. A stupid rule by the Cobb County school board had been overturned and real science had triumphed over religious prejudice.
But look at the sticker:
"This textbook contains material on evolution. Evolution is a theory, not a fact, regarding the origin of living things. This material should be approached with an open mind, studied carefully and critically considered."
Is this really an establishment of religion? Is it that horrific that students are told to keep an "open mind"? The struggle to include information about evolution in text books is a worthy one, but the reality in our country is that the majority of citizens have a deeply felt conviction that it's false and an affront to their religious beliefs.
Admitting Reality: A sticker that reminds students of the existence of those deeply-held beliefs and that requests that they approach the material carefully is not an establishment of any one religion or even of religion over non-religion. I might wish that more of the population trusted in the clear evidence of evolution, but a court mandate to ignore that reality just seems odd.
And using the courts to ban such a sticker is just stupid politics. Trying to suppress any discussion or acknowledgement of the existence of religious beliefs in public life is bound to create resentment and backlash.
Why Court Decisions Fuel Backlash: Now, let me be clear. I don't advocate any retreat on fighting for evolution and good science being taught in the schools or any other progressive social change, but that fight should happen at the ballot box. Court decisions by unelected judges uniquely alienate social conservatives and feed the image of an unaccountable elite assaulting their values. This is partly because of the sheer anti-democratic nature of court action. In court judgments, religious conservatives don't just lose on policy -- which the religious moderates could accept in a democracy -- but they are told that their religious motives are illegitimate. This is bound to frustrate social conservatives and leaves them feeling powerless, a recipe for encouraging conspiracy theories and rightwing populist agitation.
The best evidence for court decisions fueling backlash is that, while gay rights have made steady gains in legislatures across the country in the last two decades, the notable exceptions are 1996, when the Hawaiian Supreme Court on gay marriage spurred the passage of Defense fo Marriage Acts at the federal and state level, and 2004, when the Lawrence Supreme Court sodomy decision and the Massachusetts high court decision on gay marriage spurred the passage of anti-gay constitutional amendments across the country.
The explicit resentment of court power in the federal Family Marriage Amendment -- which specifically bans courts but not legislatures from allowing gay marriage -- is clear, but as significant is the other big constitutional amendment pushed by the religious right, the Constitution Restoration Act of 2004, which would strip the federal courts of jurisdiction over local officials' promotion of religion. You can see that populist anger in religious right radio hosts like Chuck Baldwin who tell their listeners, "federal courts have run roughshod over the Constitution. For all practical purposes, America is now controlled by a tyrannical oligarchy of federal judges."
Loss of Swing Religious Voters: But the larger effect, though, of this court-induced polarization of the political world is the shift of religious voters into the GOP partisan camp. For those concerned about economic justice, it is hard to see building broad majorities for that goal without regaining some of that lost ground among the religious. The hardest core of single issue religious conservatives will never vote for progressives, but there is a core of working class voters who are voting against their economic self-interest when they support the GOP rightwing.
These voters are not inherently single issue voters, but the nature of court change means that appeals for broad-based partisan allegiance to end court "oligarchies" has appeal to such voters. Because courts are so resistant to immediate democratic accountability, many religious voters feel they can't evaluate candidates based on current political issues, where they might balance economic against social concerns, but rather are told they need to choose long-term alliances on behalf of "morality" to have any voice on their social concerns.
The irony is that elite economic conservatives often don't support ending that court-enforced secularism, both because those economic conservatives may be socially liberal themselves but also because such a change could end the shot-gun marriage of economic and social conservatives. The fact that Republican-appointed judges haven't rushed to overturn secular rules may be less about principle than the institutional interest of the overall conservative movement.
We may be in the worst of all worlds where the conservative religious population resents an imagined liberal atheist elite controlling government, when in reality it is ruled by a conservative elite -- admittedly worshipping Mammon more than Christ and allowing only token concessions to the religious-minded without ending the core of court rules that fuel that populist resentment.
Progressives Need to Proselytize: The other key argument for leaving decisions on social issues in the democratic realm is that many good-hearted religious folks are willing to accept, if not always support, progressive social changes. But they don't want to feel that those changes are outside their control or the control of their neighbors. As long as any change requires a majority vote to be enacted, that is a basic restriction on how far that change will go. Obviously, for the fringe of rightwing zealots, that's still too much change, but swing religious voters inherently can have comfort that change won't be so far beyond their control when they are the deciding vote.
Even where such religious voters may disagree with progressive cultural change, they will in many cases be willing to support progressive candidates where they agree with them on other economic and political questions, because of those inherent democratic limits on cultural change. And if such religious voters are working with secular activists on other issues, they might through day-to-day interaction even rethink some of their conservative social values.
Speaking Out for Secular Truth: Which brings me to the final point. Courts make secularists too intellectually and politically slack. The religious right is mobilizing broadly, not just at the ballot box but in the day-to-day lives of people to convince them that their values are the correct ones. Liberals need to do the same. America was never the religious theocracy imagined by the religious right, but the important changes in social values in our society have come not from court rules but from a vibrant democratic debate. We need to continue that tradition of democratic mobilization on secular values and abandon the elite crutch of the courts.
Nathan Newman is a longtime union and community activist and author of Net Loss [Penn State Press], on inequality in the Internet economy. Email nathan@newman.org or see www.nathannewman.org.