In the case of the evolution debate, even the judge in the case didn't think that non-religious beliefs were being suppressed -- the school was teaching evolution, whatever the warning on the sticker. And the point of "Intelligent Design" -- not even taught in Cobb County but implicitly referenced by the sticker -- is to use secular scientific-sounding arguments, not religious ones, to argue against evolution. So at its heart, the banning of the stickers is based on the hardest standard of secularism, banning even religious motives from structuring public life and education.

Contradictions of Strong Secularism: The problem with this approach to religion in public life is that it's bound to fail, since a majority of the population is presently religious. And it encourages backlash from even non-fundamentalist religious folks who just see it as an abuse of the courts that does not protect individual liberty but instead imposes a minority view of public life on the majority.

Frankly, religious fundamentalists have a good case that evolution attacks their belief system. Darwinism directly contradicts a literal reading of the bible creation story. To the extent that secularists claim a non-religious view of the world is an ethical view of the world PROTECTED by the free exercise clause, a non-religious explanation of our origins is part of an ethical view of the world that cannot be ESTABLISHED by the state.

I'm not arguing that Darwinism should therefore be excluded from schools -- as some on the religious right would claim. But I am arguing that the courts shouldn't try to look at religious motives for legislation and instead should limit any intervention to protecting the religious liberty of all students. If a majority pushes to teach Intelligent Design in schools and a teacher of ID is using it in a way that makes atheist Darwinists feel intimidated, that's a situation calling for intervention in the name of religious liberty.

And as importantly, it's a situation that will actually rally sympathy by the public, rather than the media focusing on, as Kevin Drum calls them, "fringe issues." But unlike Kevin, I don't think liberals have "won the church-state argument." Or if we have won, it's been in many ways a pyrrhic victory.

Backlash and Pyrrhic Victories: There is no question that liberals have made impressive gains in public opinion on issues like womens rights, abortion and gay rights overall. The focus on gay marriage is in some ways a sign of how much the religious right has had to retreat to get majority consensus on that issue.

But in many subtle and not so subtle ways, secularism is losing ground. The courts are sticking the occasional thumb in the holes in the dike, temporarily blocking the flood, but as more and more conservative judges are appointed, that dike could break and a liberal secularism dependent on legal rhetoric could be drowned. And even now, you see faith-based initiatives and restrictions on international aid that require conformance with conservative religious beliefs. If the religious right does not have the power to impose theocratic teaching on middle class schools, they have enough to impose it on the poor, both here at home and abroad.

And it's hard to see the rise of conservative religious power in government as anything but backlash. A generation ago, Catholics and even white evangelicals were divided in their voting loyalties, yet they have becoming increasingly partisan in their voting loyalty to the Republicans.

Courts as Focus of Backlash: Since I am not arguing that progressives should start pushing less hard for gay rights, abortion rights and a secular society, my "retreat" point is to abandon the courts as a tool for promoting liberal social values.

The reason is that courts uniquely alienate social conservatives. This is partly because of the sheer anti-democratic nature of court action, which frustrates them and leaves them feeling powerless, a recipe for encouraging conspiracy theories and populist agitation. But in court judgements, religious conservatives don't just lose on policy -- which the religious moderates could accept in a democracy -- but are told that their religious motives are illegitimate, a point I noted in this earlier post .

The best evidence for the effects of court decisions in fueling backlash is that while gay rights has made steady gains in legislatures across the country in the last two decades, the notable exceptions are 1996 - when the Hawaiian Supreme Court decision spurred the passage of DOMAs at the federal and state level -- and 2004, where the Lawrence Supreme Court decision and the Massachusetts high court decision on gay marriage spurred the passage of anti-gay constitutional amendments.

The explicit resentment of court power in the Family Marriage Amendment 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 by 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 immediate 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 elites 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 population resents an imagined liberal atheist elite controlling government, when in reality it is rule by a conservative elite -- admittedly worshipping Mammon more than Christ, but enacting token concessions to the religious-minded without ending the core of court rules that fuel that populist resentment.

De facto when progressives defend court power over democracy, they are increasingly allowing courts to set the terms of debate on social issues. Instead of progressives picking the social issues with maximum political support to highlight, such as ending job discrimination against gays, we end up with debates on the issues where conservatives get their maximum political support.

Progressives Need to Recruit Swing Religious Voters: Here is the other key point about leaving decisions on social issues in the democratic realm. There are many good-hearted religious folks who are willing to accept, if not alway support, progressive social changes. But they don't want to feel that they 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 social changes will go. Obviously, for the fringe of rightwing zeolots, that's still too much change, but swing religious voters inherently can have confidence in the limits of social change when they are the deciding votes on how far that change will go.

Even where such religious voters may disagree with progressive social change, they will in many cases be willing to support progressive candidates where they agree with them on other economic and political questions, since they know there are inherent limits -- partly under their control -- on how far social change they might oppose may go. And if such religious voters are working with secular activists on other issues, they might even through day-to-day interaction rethink some of their religiously-based social values.

Speaking Out for Secular Truth: Which gets 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. Commentator Dan S. worries that if evolution and "intelligent design" end up in the same classroom, he doesn't think students will come out with the right evaluation of the evidence. But that's a problem in the larger society where parents aren't pushing for a fair evaluation of the evidence by their children. And that's where we need to organize, not just depend on courts to fix "the problem" over the objections of parents.

In an odd way, I'm arguing for secularists to go in two different directions. At the level of courts, I'm urging a retreat, but in popular culture I am urging a much more militant stance against creationism and fundamentalist religious values. My experience is that many secular types don't really feel a great need to engage with religious folks on these issues -- it's seen almost as impolite to challenge peoples' faiths, so we avoid core issues.

Secularists often spend their time talking about the compatibility of religious beliefs with secular rules in order to justify the legal basis of those court decisions. Which weakens those secularists in the cultural realm to directly confront religious fundamentalists to say their beliefs aren't compatible with science. What is striking in reading Freethinkers is how vibrant public debate was in the 19th century over these core issues of religious truth.

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.

Update: Matt Yglesias cares less about the legal points and gets to the heart of the political problem:

Dependence on the courts makes liberals fat and lazy. Important political fights are won on the airwaves, on the op-ed pages, in the streets, and at the ballot box. The "culture wars" fights are largely winnable, but only if you play the game and learn to play it well.

Posted by Nathan at January 18, 2005 08:04 AM