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Indictment of Courts Has Conservatives Divided

Respected Journal Sparks Controversy

BY Peter Feuerherd

January 12-18, 1997 Issue | Posted 1/12/97 at 2:00 PM

 

IN THE THINK tanks and scholarly magazine offices along the Washington-New York axis a bitter conflagration has erupted, featuring charges of anti-Catholicism, anti-Semitism, and anti-Americanism.

It all began, simply enough, with a series of magazine articles that appeared last year in a distinguished conservative journal.

A symposium entitled “The End of Democracy?” published last November in First Things, a journal edited by Father Richard John Neuhaus, challenged the role of the courts in American life. Contributors argued that the judiciary had invaded the democratic process, particularly on issues such as abortion, homosexual rights and euthanasia. One contributor argued that if the courts would not relinquish their power, moral conservatives should seriously consider civil disobedience. (See also page 7.)

In the symposium issue, the editors of First Things, asked whether “we have reached or are reaching the point where conscientious citizens can no longer give moral assent to the existing regime.” In his contribution to the symposium, Robert George, associate professor of politics at Princeton University, relied heavily on John Paul II's encyclical Evangelium Vitae, in which the Pontiff argues that “abortion and euthanasia are crimes which no human law can claim to legitimize. There is no obligation in conscience to obey such laws; instead there is a grave and clear obligation to oppose them by conscientious objection.”

Catholics and others “of good will,” says George, are called to combat and transform what John Paul calls “the culture of death.” As such, he says, they must be “prepared to consider seriously the Pope's teaching in Evangelium Vitae and cannot now avoid asking themselves, soberly and unblinkingly, whether our regime is becoming the democratic ‘tyrant state'dabout which he warns.”

First Things added, citing court-sanctioned legal abortion and euthanasia, which found currency in Hitler's Germany: “America is not and, please God, will never become Nazi Germany, but it is only blind hubris that denies it can happen here and, in peculiarly American ways, may be happening here.”

The symposium incited a rebellion among some conservatives, including members of the First Things board who complained that the magazine was promoting revolution and engaging in excessive rhetoric. Gertrude Himmelfarb, an author and wife of Irving Kristol, a leading conservative thinker, resigned in protest from the journal's editorial board, saying, in part, in a letter to the editor, that the suggestion of civil disobedience “discredits, or at the very least makes suspect, any attempt by conservatives to introduce the moral and religious considerations into ‘the public square’—as if morality and religion necessarily lead to such apocalyptic political conclusions.”

In a response to the First Things symposium, Midge Decter, a senior fellow at the Institute on Religious and Public Life—which publishes First Things—and member of the journal's editorial board, addressing Father Neuhaus, said that the and his colleagues ought not “to be reckless about the legitimacy of this country.” Her husband, author Norman Podhoretz, former Editor of Commentary, denounced Father Neuhaus for the “aid and comfort you for all practical purposes offer the bomb throwers among us.” For Mrs. Decter, “what the court actually follows is the culture.… You threaten that millions of your fellow Americans have come to feel as alienated from this country as you claim to. But there is in fact little or no evidence for that.… The truth is that the issues really driving this symposium, abortion on demand, euthanasia and homosexual marriage, represent the most powerful and terrible of all temptations to people, i.e., the temptation of convenience and slothfulness. How much easier such measures all promise to make things! That is why the cultural battle over these issues will be a long and slogging and often thankless one.… And I beg you: do not be impatient, and for heaven's sake do not be reckless about the legitimacy of this country.… You will only end by strengthening the devil's hand.”

Another writer, John Leo of U.S. News and World Report agreed that the courts have contributed to the breakdown of the moral order in America. But he urged court opponents to cool their rhetoric. He said that talk of Nazi Germany only “changes the subject from the behavior of the courts to the behavior of conservatives. It plays into the hands of people who wish to lump us with cranks and violent extremists.”

The controversy didn't remain within the pages of First Things. It attracted a wide range of writers outside the conservative camp, including The New Republic's Jacob Heilbrunn, who roundly criticized neoconservative Jews for allying themselves with conservative Christians who “embrace explicitly the notion of a Christian nation” based on European, Thomistic Catholic philosophy. Such a position, he wrote, is a threat to Jews in America. The subtle suggestion of anti-Semitism appeared particularly inappropriate to those who know First Things as a journal that has long been noted for its openness and creativity in dealing with the relationship of Catholics and Jews.

Heilbrunn earned an opprobrium from the Catholic League for Religious and Civil Rights. The group charged that he was expressing the old nativist anti-Catholic argument that followers of the Pope were guilty of dual loyalties and could not be trusted to enter into the American political debate.

The dispute has continued with accusations and charges questioning patriotism and the role of religious faith in public discussions. While it may engender passionate response among a relative handful, the fissures the argument reveals about the conservative movement may very well have an impact on what view will prevail in the Republican party in particular and American politics in general.

As Heilbrunn's article describes it, the debate involves Christian conservatives—including Catholics such as Father Neuhaus and evangelical leaders such as Charles Colson and James Dobson—who argue that America is in a time of great moral peril because of its acceptance of abortion, euthanasia and homosexual rights, all promoted by a judiciary which, to a greater or lesser extent, goes unchecked by the democratic process. The system, they contend, needs to be called into question. Some have called for massive civil disobedience, citing Pope John Paul II's admonition that democracy cannot justify immoral policies such as the legalization of abortion and euthanasia.

On the other side are neoconservatives, many of them Jewish, who embraced the conservative movement in the 70s and 80s in reaction to what they viewed as the anti-Americanism promoted by the Left of the 60s. They tend to uphold the view of the United States as a paragon of personal freedom and responsibility and are uncomfortable with the rhetoric of some in the conservative movement who compare modern-day America with Nazi Germany.

But Father Neuhaus, the former Lutheran pastor and now a priest of the Archdiocese of New York, who like many neoconservatives participated in leftist movements in the 60s, declines to back off that analogy. “It's not only fair, it's necessary,” he told the Register. Is Nazism, he asked, “a unique unrepeatable phenomenon” or is it “an icon of evil we have to constantly have in our minds for our lives and our own society?”

He said that religious people raising central moral issues about society is a long and honored American tradition, from the abolitionists to Martin Luther King. The United States, he said, remains a deeply religious country, with Church participation rates higher than almost all other industrialized nations.

But, he noted, “American intellectuals have assumed that we live in a secular society. That notion has everything going for it but the evidence. ‘One Nation Under God’ is not just rhetorical fluff for most Americans.”

Russell Hittinger, a professor of Catholic studies at the University of Tulsa, Okla., and a contributor to the original First Things symposium, told the Register that liberals are trying to divide the conservative movement through this controversy. He noted that of the three scholars who resigned from the First Things board to protest the symposium—Gertrude Himmelfarb, Walter Berns and Peter Berger—only one, Himmelfarb, is Jewish. That, he said, signifies that the Jewish-Christian split in the conservative movement as described In Heilbrunn's article is exaggerated.

The split that Heilbrunn writes about, involving cultural conservatives versus economic conservatives, is an old one, said Hittinger. It is an argument, in fact, that played itself out during the 1996 Republican convention.

In an echo of regular criticisms by moral conservatives about the campaign waged by Bob Dole, he said the Republicans allowed “cultural conservatives to write the platform and then hushed it up.”

It Is an uneasy alliance, said Hittinger, but “The New Republic is trying to help break it down” by exaggerating its differences. The original symposium, he said, was designed as a response to federal court rulings overturning an anti-gay rights referendum in Colorado and a New York ruling that overturned that state's euthanasia laws. The original articles were designed to focus attention on abuses of the courts, and were not intended to serve as an indictment of American culture in general, emphasized Hittinger.

But Heilbrunn said that the extremist rhetoric used in the symposium and in other forums by what he calls the “theocons” are readily available on the record.

“They are indulging in wild and careless language” he told the Register, citing frequent references to Nazi Germany in the call to oppose court rulings in much of the conservative literature. He said he regrets the use of the phrase “anti-American” in his New Republic article, noting instead that it would have been better to describe Thomist philosophy and its European Catholic roots as “non-American.”

“It's not anti-American. They fit into a larger tradition of civil disobedience,” he said. But he argued that accusations that his article was anti-Catholic is part of playing “the victimhood game” that conservatives have long blamed racial minorities and liberal interest groups for playing. He emphasized that his article was only referring to a tiny minority of Catholics who believe in the agenda of the authors of the First Things symposium. Ironically, he said, his article was intended as an attack on Jewish neoconservatives who have largely left the First Things symposium uncriticized.

He expressed surprise about the vehement reaction to the article. But he said that in the cultural conservative camp “the sensitivity radar is up” because of the re-election of Bill Clinton. Unlike moral conservatives, who argue that challenger Dole failed to raise the cultural issues, Heilbrunn argues that the Dole campaign regularly berated voters for not paying attention to what it described as a morally degenerate administration. And it didn't work as Clinton won an electoral college landslide and an eight-point popular vote victory margin. “It's started to dawn on the conservatives that the American people don't share their political program,” said Heilbrunn.

But Father Neuhaus stressed that a conservative Republican Congress was elected and that Clinton's victory occurred because the incumbent “ran as a conservative” and “shamelessly exploited himself as such” against weak opposition.

Heilbrunn and Father Neuhaus agree on one point: The arguments raised in the reaction to the First Things symposium involve more than just the personal need to argue among small cliques of politically-minded intellectuals.

“It's not a dispute that can be wished away,” said Heilbrunn.

“It's a major crisis,” said Father Neuhaus, who compared America's current culture wars with that of the 1850s. “The basic arguments were then joined by Abraham Lincoln and Stephen Douglas. We're on Lincoln's side,” claimed Father Neuhaus, arguing that the 16th president regularly publicly criticized the morality of Supreme Court ruling that upheld slavery.

Peter Feuerherd is based in New York.