Hints that the "Culture Wars" Might Dampen (But Don't Count On It)

Brian Tamanaha

The popular term "culture wars" is a misnomer. There have always been clashes among cultural views. What characterizes the contemporary situation is that these contesting cultural views have aggressively taken their battles into the legal arena, seeking to use the law as a weapon against opponents.

"Legal wars over culture" is less concise, but better fits the situation. Such legal battles have also occurred in the past, to be sure, but not to the same extent and in the same unrelenting ways that we see today. Abortion, creationism, gay rights, and the availability of contraception, among other issues, are being played out in courts and legislatures and administrative agencies around the country.

Now there are a few signs that the combatants involved are having second thoughts about these activities out of recognition that their efforts may in the end hurt their ideals or their causes.

David Kuo, the conservative evangelical who made a splash before the election by exposing the cynical manipulation of evangelical voters by the Bush Administration, recently wrote an editorial expressing this growing sentiment among evangelicals:

John W. Whitehead of the Rutherford Institute, the conservative Christian organization that gained notoriety during the 1990s when it represented Paula Jones in her sexual harassment suit against Bill Clinton, wrote this after the elections: “Modern Christianity, having lost sight of Christ’s teachings, has been co-opted by legalism, materialism and politics. Simply put, it has lost its spirituality.”

He went on, “Whereas Christianity was once synonymous with charity, compassion and love for one’s neighbor, today it is more often equated with partisan politics, anti-homosexual rhetoric and affluent mega-churches.”

Mr. Whitehead is hardly alone. Just before the elections, Gordon MacDonald, an evangelical leader, wrote that he was concerned that some evangelical personalities had been seduced and used by the White House. He worried that the movement might “fragment because it is more identified by a political agenda that seems to be failing and less identified by a commitment to Jesus and his kingdom.”

Kuo recognizes that the committed activists will not go away:

There are those who find the moral force of issues like abortion and gay marriage equal to that of the abolition of slavery — worth pursuing no matter what the risks of politics are for the soul. But the advocates working these special interests may, I think, be far fewer in coming years than in years past. Gay marriage was a less mobilizing force in 2006 than it was in 2004. In Arizona the ballot measure to outlaw it was defeated. The South Dakota abortion ban failed.

Kuo's sentiments might presage a dampening of the aggressive legal activities of these groups, but there are reasons to think otherwise. Without questioning their genuine commitment to their causes, it also matters that many of these advocates have made a career of pursuing them. These causes are good for fundraising and for legal business. The November issue of the ABA Journal profiles James Bopp, who is earning national fame, and a lot of clients, by bringing legal challenges around the country to judicial ethics rules that restrict judges from expressing their personal views on matters like abortion.

The other reason to to be pessimistic is that a battle cannot end unless all of the combatants are willing to stand down. The same issue of the ABA Journal profiles gay marriage advocates in an article entitled "Same-Sex-Marriage Advocates Vow to Fight on, Despite a Summer of Rulings Against Their Cause." Things have not been going well lately in court. But even significant past court victories (in Hawaii and Massachusetts) had counter-productive consequences, prompting a number of state statutory and constitutional bans of gay marriage. Undaunted by these checkered results, gay marriage advocates are moving foward with a full slate of litigation and legislative proposals.

The Fall issue of the Harvard Law Bulletin has an article entitled "The Coming Wave," which covers the increasing numbers of law students and young lawyers eager to get into this line of work:

There are also growing numbers of 'cause lawyers' supported by well-funded organizations across the political spectrum, and new 'hybrid' firms that do some paid work in order to subsidize their predominantly pro bono caseloads.

All of the lawyers engaged in these activities are sincerely motivated by their causes. Many make personal sacrifices to pursue these causes. Many of these causes are important. Many of these causes I personally support. But as a society and legal culture we must contemplate the adverse consequences for the law of these rampant political battles--battles that include rigorously screening the ideological profiles of judges. Preserving the integrity of our legal system should be a matter of concern for liberals and conservatives alike.

As argued in detail here, if these battles continue, the law will come to look less like a public resource that reflects and represents the common good, and more like tool or weapon for particular interests. We have already traveled a long way down this path.
Posted 11:41 AM by Brian Tamanaha [link]