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Bringing the case against judges

Are 'activist judges' ruining America? That's the fear of a newly formed coalition of religious conservatives who are urging Congress to push back.

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Many speakers used tough language and urged extreme remedies. Several attacked Supreme Court Justice Anthony Kennedy, with some calling for his impeachment. Justice Kennedy (appointed to the court by former president Ronald Reagan) was excoriated for opinions against capital punishment for juveniles and a Texas antisodomy law, and also for citing international norms in his opinions. One speaker charged him with upholding "Marxist, Leninist, satanic principles drawn from foreign law."

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Other speakers called for new law schools, saying Ivy League and even some Catholic law schools are responsible for producing secularist lawyers and judges.

At the center of the struggle is the debate over separation of church and state. Conservatives point out that the notion of a "wall of separation" between church and state is not an idea contained in the Constitution but rather a phrase taken from a letter written by Thomas Jefferson. But in recent decades, they complain - starting with the banning of organized school prayer and Bible reading in the 1960s - the courts have enshrined that idea of that "wall of separation" in their rulings.

"Separation" arguments, they suggest, are modern and antireligious and thus should be abandoned.

Other experts in the field of law and religion say it isn't that clear-cut.

Those who favor a firm "wall" and those who seek to eliminate it both "are misguided - there is a middle way between the two," says John Witte, professor at Emory University Law School in Atlanta. America's founders, he says, saw several distinct understandings of church-state separation (see story below).

"It's the changes [in court rulings] since the '60s that make [conservatives] see this as judicial activism, but that's a misunderstanding," says Eric Mazur, associate professor of religion at Bucknell University in Lewisburg, Pa. "The court is simply ruling in a way that reflects a greater diversity in American society."

Some legal experts say "judicial activism" actually cuts both ways today, with conservative and liberal judges both going far beyond the Constitution text in their opinions.

The Constitution Restoration Act - which conservatives have introduced in the House and Senate - would restrict the federal judiciary, including the Supreme Court, in cases involving the acknowledgment of God. The act also defines a basis for impeachment.

"We've had 200 years of history in which the federal courts have exercised jurisdiction over religious matters," says Dr. Witte. "It would be remarkable, to say the least, to undercut that jurisdiction today."

The coalition, however, plans to go all out to mobilize support for the legislation. Whether it wins that battle or not, it intends to send a powerful message.

What did the Founders intend?

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."

These phrases of the First Amendment to the US Constitution have been called "articles of peace." For 200 years they have protected freedom of conscience and saved America from the religious wars that have plagued history.

In the US, controversies over the practice of faith have been fought in the courts, and not on battlefields.

But court decisions in recent decades have sparked growing anger among religious conservatives, who speak of "judicial tyranny" and a "judicial war on faith." They charge judges have made new law on the basis of a "mythical wall of separation" between church and state never intended by the founding fathers.

Others say the founders intended the principle of separation to ensure several different forms of protection: protection of church and state from one another, of individual liberty of conscience from both, of states from the federal government, and of society from unwelcome participation in and support for religion.

The latter idea was the most controversial, says John Witte of Emory University. In 1800 it started a long battle that is still under way today.

The Federalist party "accused [Thomas] Jefferson of being the anti-Christ ... and a secularist bent on destruction of the necessary religious foundations of law," Dr. Witte says. And the Republican party "accused [John] Adams of being a Puritan pope and religious tyrant bent on subjecting the whole nation to his suffocatingly narrow beliefs."

In the 19th century, the Supreme Court had relatively few religious cases on its docket. But clashes between Protestants and Catholics kept the church-state separation debate simmering.

In the 20th century, religion cases grew dramatically, as religious pluralism increased. The US became more litigious and groups such as the ACLU and American Jewish Congress began challenging traditional practices.

In a 1947 case, the court spoke of a wall of separation that "must be kept high and impregnable," paving the way for controversial decisions on schools and public displays. Christian legal firms have won some victories in recent years that represent a partial retreat from the strict separation interpretation.

Sources: Edwin S. Gaustad, "Church and State in America," Oxford University Press; John Witte, "Facts and Fictions of Separation of Church and State."