One last point on the Christian Right. In Orin Kerr’s admittedly insightful post, he views the culture wars through a “political process” lens. That is, he argues that social conservatives’ preferred constitutional positions (e.g., abortion, school prayer, gay rights) simply preserve the political process. Liberal positions, by contrast, remove those issues from the ballot box. It’s an interesting argument, but I think there are better ways of conceptualizing these debates.
Before I get to that, I think Kerr is correct in so far as he’s explaining why conservatives care more about court decisions. But to the extent he’s implicitly criticizing the liberal positions (which I think he is), it’s important not to adopt an overly narrow view of the “political process.” Yes, banning school prayer removes the issue from the ballot box. But you could also argue that the political process gave us the First Amendment, which prohibited these types of actions. Thus, it’s not enough for conservatives to cite the ballot box – they also have to justify why their conception of the constitutional right allows a given issue to be decided by the ballot box.
But back to the main point, I think it’s equally valid to conceptualize these fights in terms of allocation of decision-making power. In other words, who gets to decide? The government? Or the individual?
The social conservatives’ positions tend to empower government over individuals. If they got their way, the public would be forced to submit to the government’s decision-making. The more liberal position, by contrast, allocates power to individuals – no one is forced to do anything. (Admittedly, this is not really a constitutional argument – just an additional explanation for why the Christian Right tends to scare people).
Take, for instance, the granddaddy issue of them all – abortion. The Christian Right position would require every single person in a given jurisdiction to give birth. (Yes, some would argue that it’s simply about letting the states decide – but still, they prefer this position because many states, and virtually the entire South, would ban abortion). Thus, the decision-making power here would belong to the government. Individuals would no longer be free to decide.
The pro-choice position, by contrast, ensures that individuals – not the government – will ultimately make these private decisions. Individuals remain free to have, or not have, abortions as they and their God see fit. And everyone remains free to persuade their fellow citizens of the values of bringing all pregnancies to term. But in the end, the individual – and not the state – would make the final call.
This pattern repeats itself across a number of issues. For example, gay marriage doesn’t require anyone to do anything. It merely allows consenting gay adults to be married. Gay marriage bans, by contrast, grant that decision-making power to the state.
Similarly, rights to contraception don’t require anyone to do anything – the ultimate decision remains with the individual. Contraception bans, by contrast, allocate the decision-making power to the government.
Same deal with school prayer. Banning school prayer in public classes doesn’t prevent anyone from praying privately at the school. But allowing public prayer, by contrast, would force non-Christians to sit through prayer sessions in a publicly funded school. Again, the decision to participate in prayer would be made by the state, not the individual.
The larger point is that these examples illustrate why many people fear social conservatives – simply put, many of the latter’s preferred positions would use the state to intrude on people’s lives and dictate very private and personal decisions to them.