Abstract
“Seeing the United States through conservative eyes requires that we take seriously conservatives’ pronouncements on government, even if they sometimes seem subterfuge for malicious designs” (p. 12). This quotation sums up much of what Robert Daniel Rubin endeavors to do in this book, and it demonstrates the basic suspicion of his subject that Rubin has in telling his tale. This book aims to tell the story of a particular struggle over prayer in public schools, following the case that would become Wallace vs Jaffree all the way to the Supreme Court and through its aftermath in Smith vs Board of Education. Through this narrative, the author endeavors to show a changing legal and political landscape, as the Christian Right shifted to adopt the civil libertarian language championed by liberalism, allying itself with a growing voice of judicial conservatism set on championing the will of the majority over the rights of individuals. For the Christian Right, though, Rubin can’t shake the suspicion of malicious designs, as he ties the movement closely to the theonomic theology of R. J. Rushdoony. As the author states on page 12 of the Introduction, this “is a work of political history,” and the author’s approach clearly frames his narrative as a political struggle by the Christian Right to impose its values on society.
In the main text, the author seeks to make his point almost exclusively through narrative, with almost all the explicit analysis reserved for the Introduction. The majority of the book walks through the lifecycle of the Jaffree/Smith case, including numerous biographical asides dealing with major players in the narrative. One of the prime characters in this book is federal judge Brevard Hand, a judicial conservative who bristled at the line of precedent coming from first the Warren and then the Burger Supreme Court. Early on, Hand allowed a group of parents and local activists to intervene in the case, where they argued that public schools used the veneer of religious neutrality to push the religion of secular humanism on students. After the Jaffree decision was issued by the Supreme Court, which invalidated a law allowing for a period of silence before lunch, Hand would turn to these intervening parties to fire off one last shot at the judicial system by arguing that schools’ inculcation of secular humanism violates the Establishment Clause of the Constitution. Rubin closes by tracing the legacy of Jaffree, especially embodied by Justice Rehnquist’s dissent, and he leaves open the legacy of antijudicial suspicion, majoritarian politics, and the effort of conservatives to “try their hardest to reassert their influence over law and society” (p. 332).
Throughout this book, there is no doubt that Rubin knows how to tell a good story, but, as someone on the conservative end both in terms of religion and judicial philosophy, the underlying suspicion I mentioned at the outset generates a sense of unease throughout the book. In a few places, that suspicion boils over into a certain inaccuracy, as Rubin slightly exaggerates the influence of Rushdoony, crediting him with more influence on the thought of other theologians, like Francis Schaeffer, than is warranted. At the same time, he seems to view the Establishment Clause jurisprudence embodied in Lemon as the only view “fully committed to church-state separation” (p. 209), while Justice Scalia and other judicial conservatives “were not interested in equally maximizing religious liberty for all—only those of Judeo-Christian heritage” (p. 319). Further, the author emphasizes the majoritarian aspect of Rehnquist’s judicial philosophy so much that he ends up misleadingly quoting Rehnquist (p. 214), suggesting that Rehnquist saw the Constitution primarily as a way to curtail individual freedoms, not guarantee them. In the actual speech referenced, Justice Rehnquist speaks about the balance of individual liberty and civil order, with the Constitution and Bill of Rights seeking to maximize both. As a political history, this book has a tendency to boil the nuance of judicial philosophy and theological concern down to naked political maneuvering of a conservative majority foisting its views on minority interests. Everything boils down to a certain form of power politics, and that narrative tone fails in the author’s call to take conservatives seriously. In the end, this is a well-written and exhaustively researched book that presents a compelling narrative account of the culture wars through the lens of a specific legal conflict, but the near-exclusive reliance on narrative shades some of the author’s analytical choices and biases, so I can only cautiously recommend it.