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January 18, 2005

Reply to Kevin Drum

In elaborating my views on religion and the law, I didn't answer one question Kevin Drum raised, as did CharleyCarp in comments, which is: Even if I'm right that court intrusions on religion ultimately hurt social liberalism, how can I stop people from filing these self-destructive lawsuits?

The answer is that I can't.

But if progressives come to a general consensus that such court fights are counter-productive, they don't have to stop those lawsuits to end the religious polarization in voting patterns. First, if progressive activists and political leaders promote a detente on legal fights over religion, most secularist judges would follow along on that consensus. Courts are not immune to either election returns or social movements.

Secondly- and as importantly - if progressive candidates became the advocates of true judicial restraint -- as they were in the 1930s -- that would assure religious swing voters that new judges appointed to the court would not be preempting future democratic debate on such issues. Since votes can't effect already appointed judges, a few loose secularist decisions would matter less than the commitment that future judges would take a step back on religion.

This wouldn't change the voting patterns of single issue religious voters, but I think it would effect a larger swath of religious voters who resent courts, rather than they and their fellow citizens, making decisions on issues so important to them.

Posted by Nathan at January 18, 2005 08:46 AM