The Nullification of Religious Liberty

About Frederick Clarkson

It’s true. Religious liberty is under sustained attack in America—but not in the way the Christian Right would have us believe. A theocratic (and sometimes Neo-Confederate) movement within the broader Christian Right is targeting the religious liberty of those they don’t agree with. Marriage equality is currently on the front lines of this historic assault. And while it has not always been framed as an issue of religious liberty by LGBTQ activists and progressive allies, that is changing—even as advances in marriage equality in the courts and federal policy are causing some Christian Right leaders to discuss potential state-level nullification.

United Church of Christ's Rev. J. Bennett Guess

United Church of Christ’s Rev. J. Bennett Guess

But the narrative promoted by the Christian Right—that they are upholding religious liberty against a creeping secular totalitarianism—is unraveling. People are getting wise to how the religious liberty of those, religious or non-religious, who wish to marry the person of their choice is being stricken by organized theocratic factions bent on using any tool they can find to ensure that only their definition of marriage and of religious liberty prevails.

An historic example came last week. The mainline United Church of Christ (UCC) won their federal court challenge to a North Carolina law which banned same-sex marriage. The UCC, the first national Christian denomination to recognize same-sex marriage back in 2005, noted that North Carolina’s Amendment One not only made it illegal for their members to marry as same-sex couples, but also made it illegal for their clergy to perform the religious ceremony— even if that ceremony carried no legal weight. The federal judge recognized this infringement of true religious liberty, and made that clear in his ruling for the plaintiffs.

“We are thrilled by this clear victory for both religious freedom and marriage equality in the state of North Carolina,” said the Rev. J. Bennett Guess, a UCC national officer. “In lifting North Carolina’s ban on same-gender marriage, the court’s directive makes it plain that the First Amendment arguments… were both persuasive and spot-on. Any law that threatens clergy who choose to solemnize a union of same-sex couples, and threatens them with civil or criminal penalties, is unconstitutional.”

But even as the court victories pile up— the backlash has also begun.

In response to the U.S. Supreme Court’s decision last week to let stand seven lower court rulings legalizing marriage equality, a leading Republican presidential prospect for 2016, and perhaps the leading politician on the Christian Right, has come out in favor of state nullification of decisions of the Court. Former Governor Mike Huckabee (R-AR) says he hopes that “somewhere there will be a governor who will simply say, ‘No, I’m not going to enforce that.’”

Miranda Blue at Right Wing Watch reports that Huckabee told Iowa conservative talk show host Steve Deace that states should have also ignored Roe v. Wade, and the Court’s rulings banning school-sponsored prayer. “Well, the courts have spoken,” Huckabee declared, “and it’s an important voice, but it’s not the voice of God and the Supreme Court isn’t God.”

“When Deace pressed him on the ‘maelstrom’ that would be set off if state governments simply ignored court rulings on marriage,” Blue’s article continues, “Huckabee responded that it was in fact the courts that have set off a ‘constitutional crisis’ by ruling in favor of marriage equality.”

Rachel Tabachnick and Frank Cocozzelli documented the rise of modern unconstitutional nullification efforts in a recent article in The Public Eye magazine. I followed up with an essay detailing public predictions by Christian Right leaders of violence that would likely follow from the political tensions generated if states defied federal laws, regulations and court decisions. A glimpse of how such tensions are building is revealed in how Republican religious and political leaders are now being forced to try and walk back and manage the blossoming Neo-Confederate surge. This was on vivid display at the 2014 Values Voter Summit in Washington, DC, where radio talk show host Mark Levin explicitly warned against the Neo-Confederate temptation.

The Huckabee interview was significant, in part, because Deace is a powerful voice in Iowa where the first presidential party caucuses will be held. Huckabee, along with Sen. Ted Cruz (R-TX), Sen. Rand Paul (R-KY), and Gov. Bobby Jindal (R-LA) have been the main headliners over the past year at Pastor Policy Briefings, organized by the American Renewal Project, which has been one of the main organizing vehicles of the Christian Right for the past decade. Huckabee has frequently headlined these events over the years, while hosting a show on Fox News on Sunday nights. All of which may make him the most trusted and well-known political leader of the Christian Right.

Huckabee’s remarkable view also invites potentially unflattering comparisons to the segregationist southern governors of the Civil Rights era. Gov. George Wallace (D-AL) for one, drew the scorn of Martin Luther King, Jr. in his famous I Have a Dream speech: “I have a dream that one day in Alabama, with its vicious racists, with its governor having his lips dripping with the words of interposition and nullification, one day right there in Alabama little black boys and black girls will be able to join hands with little white boys and white girls as sisters and brothers.”

Although Huckabee shrewdly did not use the words—nullification and interposition were exactly what he meant.

Huckabee thus brings a decidedly Christian Reconstructionist element to the openly nullification-supportive wing of the GOP, which to date has been identified primarily with Gov. Sam Brownback (R-KS) and former Rep. Ron Paul (R-TX).

Uncoincidentally, Deace suggested in a column on The American View (the website of Neo-Confederate politician Michael Peroutka) in August that a breakup of the GOP is imminent, given the tensions between the so-called establishment and movement conservatives. He also foresees the possibility of a breakup of the U.S. itself, between what he calls “government states” and “liberty states.” According to Deace, officials of the latter “will be pressured by their constituents to defy the feds’ immoral edicts, and defend the people’s freedom instead. This will take America down a dark path it last walked in the 1850s.” He thinks a religious revival like the Great Awakenings of the 18th and 19th centuries may be the only hope. Such dark appraisals are not uncommon these days.

But in the small world that is politics, these leaders and activists are part of a profound and wide-ranging ranging conversation about the religious and political future that is becoming both increasingly urgent and increasingly public. It is also clear that whatever their differences, they agree that the religious liberty of those who disagree with them on the leading issues of the culture war, are but collateral damage in the creating a more theocratic union – if in fact they think it is a union that they still want, or think is even possible.

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Frederick Clarkson is a senior fellow at Political Research Associates. He co-founded the group blog Talk To Action and authored Eternal Hostility: The Struggle Between Theocracy and Democracy. Follow him on Twitter at @FredClarkson.