October brings with it many things: changing leaves, the crispness of the first month of Fall, Halloween, and the World Series. A lesser known but important event graces this month as well. October marks the time when our nation’s highest court re-convenes after several months of recess. Though the Summer saw continued movement in the Presidential race and between competing forces in the Executive and Legislative branches, the Judicial branch remained in silent repose.
This repose may appear even longer to the casual observer. Last year’s term produced few headlines. The Court assumed the normal caseload. Yet aside from the early decision involving the free speech of Westboro Baptist, no lightning rods flashed across the political and cultural expanse, leaving the Court’s work dimly viewed by any apart from the most avid judicial observer.
The just-begun term promises to be different. In fact, its recollection could stand among the most substantive, controversial, and important terms in decades. Diverse issues touching upon prominent public discussions await judicial determination. Culturally engaged Christians should seek to understand the issues coming before the Court. They should also strive to understand the Court’s role within the Constitution and how such knowledge aids cultural engagement.
One case already heard by the Court involves questions of protecting employees and religious liberty. In Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, the Justices are asked to wade into tough issues regarding the removal of a teacher at a Lutheran school. The case presents difficult questions. Evidence points toward the teacher receiving a raw deal. At the same time, deciding so would entangle the Court in complex determinations of a Church and a Christian school’s theology and practice. The repercussions of such entanglement could threaten protections to religious liberty. The issue is broader and longer-standing than this one case. In the aftermath of a 1990 decision, Smith v. Oregon, the Free Exercise Clause has become a much weaker defense for religious liberty. In fact, many religious liberty cases now win not on Free Exercise grounds but Free Speech contentions. The Court could continue this trend or re-affirm the power of the Free Exercise Clause. The result is far from certain, though re-affirming the Free Exercise Clause would be a welcome development.
Several other cases, while not yet accepted by the Court, could be decided by June. A decision regarding Arizona’s controversial immigration law could come this term. Readers might be surprised by the actual issue under consideration. Many might think the Constitutional question involves human rights or equal protection violations. This belief stems from serious misrepresentations of the law as something akin to Gestapo-like witch hunts, where potential illegal immigrants are hunted down to be deported. In reality, the law requires police to inquire into immigration status while enforcing other laws. The real question is whether states can pass and enforce their own immigration statutes. Arizona argues that it does so out of a necessity created by the national government’s dereliction of its duty to see that immigration laws, among all others, are faithfully executed. The national government responds that immigration’s international and inter-state component demands the uniformity of law that only a national government can provide. This case provides an opportunity to move the immigration debate past the vitriol that too often constitutes its discussion. Perhaps the lens of Federalism could begin to cool tempers enough to seek common ground that compassionately addresses illegal immigrants already here while acknowledging the necessity of controlling who and what enters a sovereign border.
California’s Proposition 8 also may be added to the docket. Should states retain the ability to define marriage in only heterosexual terms? Or does exclusion of homosexual couples constitute a violation of the Fourteenth Amendment’s Equal Protection Clause? The concept of marriage remains in a state of flux, one predating any talk of homosexual unions. At this point, marriage’s basis drifts increasingly toward a reduction to little more than happiness-fulfilling, romantic consent. What opposes the drift is not a thoughtful articulation of natural right or goodness but another form of consent—the consent of a voting majority deciding marriage’s definition. Do not expect any decision by the Court on this issue to think beyond these concepts, thereby missing a great opportunity to enlighten public discourse.
Finally, the controversial health care law has been appealed to the Supreme Court and is likely to be accepted. The Constitutional question will focus on the Commerce Clause, which allows the national government to regulate commerce between the states. Does the Court’s expansive reading of Federal power’s reach extend to mandating the purchase of health insurance? For nearly 60 years, the Court refused to strike down any national government act whose justification rested in the Commerce Clause. It seemed the Clause could grant almost any power. In the 1990s, that situation changed. The Court began to strike down certain laws as violations of the Commerce Clause. Will this trend continue or not? The lower courts split on the issue. Any Supreme Court vote would be close. While I see the law as violating the Commerce Clause, I recognize that the issue is difficult and that its unconstitutional status would demand other solutions, not a mere return to the old status quo.
These cases demand any American citizen’s attention. They touch upon essential issues to the regime that participants in that regime should consider. But they also demand the Christian’s attention for several reasons. They touch upon issues where a Christian viewpoint is greatly needed and often sorely missing in public debate and on the Court. People will look for answers to the questions raised by the Court and will be willing to hear other answers. The Court’s own manner of response can be useful to us as well. The executive and legislative branches give a popular vision of the Constitution and politics. They see governing through the lens of elections, parties, and the kinds of debate that part of the system fosters. The Court’s position within the Constitution shields it to a large extent from public opinion. Justices deliberate in private and serve for life. This position helps Supreme Court decisions to contain a nuance that often goes unheard in 30 second sound-bites of Presidents or congressmen. They can and do reason with the difficulty of the issues raised in mind, speaking in tones not void of passion but still regularly containing collegiality. They will not and should not replace the discourse of popular culture and the elected branches. But their unique angle brings a helpful perspective and tone that can pull the demagogic character of the elected branches in the direction of their own manner of discourse. Their methods can help make our engagement more reasonable and open it to being more loving.
Finally, these cases touch upon the Constitution. Believers are to pray for the governing authorities and submit to them. In the end, it is the people who rule in America. Yet they rule in a particular manner. They do not rule directly, nor do they merely rule through elected representatives. They rule through the Constitution. Thus when we seek to submit ourselves to the governing authorities, submission to the Constitution must be an essential component. This submission must involve an understanding of the document. It must realize that submission in real-world application. The Supreme Court offers this understanding and application as much as a President or Congressman.
As we contemplate Supreme Court cases this term, we can find much worthy to watch. We find the chance for engagement; we see an aid in manner of our discourse; and we find contemplation of our role as earthly citizens, a role that pervades Christian engagement with culture.