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8 Legal Right or Gospel Tool? The Past and Future of the New Christian Right’s Free Speech Strategy in the Courts I have learned that we lose our religious liberties for three primary reasons: (1) ignorance of the law, (2) hostility toward religion, and (3) apathy. . . . Most people would rather run than ¤ght and lose their rights rather than struggle for them. The issue of religious liberty is not simply a legal right— it is the ability to continue to spread the gospel in a free nation. Liberty Counsel’s Mathew Staver, 1995 During the last two decades New Christian Right lawyers have been active in religious liberty litigation before the federal courts, using the free speech clause to make the judiciary take notice of an approach to religion that it might not have otherwise. Although their Supreme Court efforts are typi-¤ed by third-party participation as amicus curiae and a decidedly mixed record where traditional religion clause arguments were made, New Christian Right lawyers have been directly and successfully involved in religion cases that have appealed to the free speech clause for protection. In the lower courts, where they participate far more frequently as sponsor or ¤nancier than as amici, New Christian Right public interest law ¤rms have again had considerable success using the free speech strategy. The limitations of this approach become more evident at this level given the many more cases available for analysis. The ADF’s role as ¤nancier in the lower federal courts has been particularly important. Having never drafted a brief nor presented an argument before any court under its own name, the existence of the ADF has quickened the pace of religious conservative activism in the judicial branch. The presence of the New Christian Right in the courts has also had an in®uence on its critics and opponents. By ¤ghting back at what they perceive as a predominating hostile view of religion in the public square, New Christian Right lawyers have forced “separationist organizations that had once used the litigation process with great success to pursue constitutional reform . . . to engage in a more reactive, less aggressive approach to litiga- tion just to preserve the victories for which they had fought.”1 These groups have also been forced to respond to the efforts of New Christian Right lawyers outside the courtroom. New Christian Right law ¤rms spend relatively little time in the courtroom compared to the other activities in which they are engaged. This undoubtedly re®ects the economic reality associated with litigation. But it also reveals both an honest evaluation of their own status (that is, New Christian Right public interest law ¤rms do not represent a disadvantaged minority whose only recourse is the judicial branch) as well as an unwillingness to yield every religious question to the courts.2 Although this approach necessarily takes a more limited view of the ef¤cacy of courtroom litigation, it does not demean the law as a tool of political activism. In fact, New Christian Right lawyers are far more dependent on the law than they are the courts for changes in public policy regarding religious liberty. Although they have largely patterned both their courtroom and extracourtroom efforts after strategies pioneered by the ACLU, NAACP, American Jewish Congress, and other litigating interest groups, the dual and sometimes con®icting nature of the New Christian Right’s purpose for turning to the courts to resolve questions of religious liberty sets it apart. Mathew Staver’s characterization of religious liberty as both a legal right and a gospel tool concisely summarizes the opportunities and challenges of the New Christian Right’s reliance on the free speech clause. Religious Liberty as a Legal Right One of the purposes of New Christian Right litigation in this area is to expand the judicial accommodation of religion. In doing so, it bene¤ts from a broad interpretation of religious expression as a legal right, enjoyed by all regardless of denomination. As such, any infringement on that right would presumably draw opposition from other religious organizations that, while theologically disparate, would combine their resources to protect this right that they equally enjoy. Securing basic rights has been the objective of secular public interest legal organizations such as the NAACP, the ACLU Women’s Rights Project, and the Lambda Defense and Education Fund, who have challenged the judicial branch to proclaim Fourteenth Amendment equal protection rights for African -Americans, women, and homosexuals, respectively. They argued that Past and Future / 137 prevailing...

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