This article is the first in a series on attacks on the rule of law. The rule of law is a political philosophy premised on the promise that all citizens, leaders, and institutions are accountable to the same laws, guaranteed through processes, practices, and norms that work together to support the equality of all citizens before the law. Governments can elect to shore up their institutions to work toward that promise, or intentionally erode those systems, openly or covertly, to entrench those inequalities, through regressive governance. This series will present themes common to regressive governance, with each thematic introductory article followed by comparative law observations from writers in countries experiencing similar regression.
Theocracy assumes that political leaders are formally operating through divine guidance. In the United States, this is currently not the case. In fact, one of the fundamental principles first enshrined in the Constitution is the Establishment Clause, which demanded a strict separation between church and state. While the United States cannot be formally considered a theocracy, shadow theocrats have infiltrated all systems of law and government and are rapidly regressing the rule of law in the United States.
There is ample evidence that evangelical Christianity, deeply bound up in America’s dark history of slavery, racism, discrimination, and nationalism sanctioned in law, is driving regressive politics in America. Some refer to this manipulation of political processes to secure ideology in law as Christian Nationalism. In the United States, Christian nationalism has a particular history tied to colonialism and dehumanizing the other. Early “settlers” referred to indigenous people as “heathens,” just as slavers often referenced the people they enslaved as “heathens,” dehumanizing those they subordinated, and attempting to justify their actions through religious conversion.
In recent decades, evangelical Christians have made a concerted effort to place their own into all key sectors of politics, law, and the media. The Council for National Policy (CNP) seeks to fuse fundamentalist theology with regular civic life, by reaching into media, state, and federal legislatures, state and federal executive offices, and the judiciary. The owners of Breitbart and the Daily Caller are members, as are leaders of the National Rifle Association (NRA) and the Ku Klux Klan (KKK). Members run affiliated groups that advocate for a modern segregated America “ruled by white people,” and the criminalization of LGBTQ+ people and abortion. Early CNP members included Jerry Falwell, Pat Robertson, Ronald Reagan, and the head of the Federalist Society. Current members include two of the wealthiest families in the world, Koch and DeVos (Secretary of Education under Trump, and CEO of a militant mercenary group). CNP also affiliates with proponents of so called “birthright citizenship,” who hold that America is for “natural born Americans” which is where the nationalism comes in.
Even as international law and human rights law and policy developed globally, and as other regions and countries have adapted , utilized international and regional human rights mechanisms as guiding legal principles or even incorporated those into their domestic law, the judiciary in the US has reverted to interpreting its Constitution through the narrow lens of a very selectively applied and weaponized type of “originalism,” providing legal support to these shadow theocrats.
Federalism has become central to the new American exceptionalism, and selectively respected by the judiciary. Previously reliable constitutional principles, like preemption, stare decisis, and justiciability have eroded dramatically. The dramatic shift away from understanding the important role of courts in protecting against the tyranny of the majority is particularly concerning. In Obergefell v Hodges, the Supreme Court identified a substantive due process right to marriage applicable to all, including married same-sex couples. The Obergefell majority acknowledged a core legal principle on which the rule of law is premised: that “fundamental rights may not be submitted to a vote; they depend on the outcome of no elections.” Rights, once acknowledged, cannot be merely voted away. Rights can, however, according to the current Court in Dobbs v Jackson Women’s Health Org, be reversed, with some claiming that the right never existed.
The judiciary’s important role in protecting those historically discriminated against from the tyranny of the majority was seen as fundamental to the rule of law from the inception of the US. It was understood that the judiciary provided a check on the legislature, the executive, and even “the people,” from passing laws based in prejudice, animus, and White Supremacy. The notion of substantive due process was born from the language of the Reconstruction Amendments, abolishing slavery, and acknowledging that state-sanctioned subordination was the worst form of tyranny. Now, cases and laws giving effect to these amendments are being attacked by those who openly affiliate with White Supremacists.
Adherence to the important role of the legal system in protecting those who have been “historically discriminated against,” and those at the mercy of the racial or gender animus of state actors, has helped insulate the US somewhat from the pernicious effects of decades of gerrymandered districts, and provided a necessary check on state and federal legislatures. This is why the Supreme Court’s ruling in Dobbs is so devastating to the rule of law. Not only did it disappear the fundamental right to control one’s own reproduction, but it placed personal autonomy under the control of state legislatures. States are now relatively unencumbered from legislating tyrannically, with laws aimed at historically discriminated against groups.
About half of the states in the US have immediately taken up the authority effectively granted to them, the legislative equivalent of saying to their marginalized residents, “if you don’t like the law you can leave.” The laws these states are implementing all prop up the status quo, benefitting those groups already in power.
Following are some recent cases and laws suggesting that the rule of law in the US is currently guided by the particular notions inherent in one version of Christianity, designed to bolster the control of those historically in control in the US; namely white, property-holding men. Note that in each of these cases, the plaintiffs instrumentalize laws and legal principles designed to protect against racial discrimination, and use them instead to promote the interests of white, Christian plaintiffs.
In 303 Creative v Elemis, a web designer claimed that Colorado anti-discrimination laws violated her rights. Although she did not yet have any such business, she argued that the laws precluded her from stating on her website that she would not work with same-sex couples, in accordance with her religious beliefs. The Colorado Public Accommodation laws, which require that public businesses not discriminate in exchange for benefitting from the public marketplace, she claimed, violated her constitutional right to free speech and religious freedom. The Supreme Court, rather than declining the case as non-justiciable, given that the plaintiff’s injury was entirely speculative and she, therefore, had no standing, heard arguments on the violation of her First Amendment rights.
In Brackeen v Haaland, a white couple from Texas, who centered their Christianity in the case, challenged the Indian Child Welfare Act, which protects native people by preferencing adoption within native communities. They claim that they “felt a Christian calling to adopt.” After returning a first indigenous child they deemed “a difficult child,” they were permitted to foster a second, under the condition that they would not seek to adopt. They violated the condition and sought to adopt the child. Despite early opposition from native communities who found a Navajo family to adopt the child, they ultimately relented and removed their opposition to the Brackeen’s adoption. Nevertheless, the Brackeens challenged the constitutionality of the Indian Child Welfare Act, claiming that it discriminated against them on account of their race, and the state of Texas joined their suit. This case too should be non-justiciable, either for lack of standing or lack of ripeness, as the Brackeens were not injured by the Act. Five years ago, this case too would have been non-justiciable.
The separation between church and state, perhaps the foundational rule of law principle in the United States, has been virtually eradicated by the current judiciary. In Kennedy v. Bremerton Sch. Dist, a football coach, who had been warned repeatedly not to pray at school, not only prayed at school, but called the media to ensure that his violation of the school’s rules would be televised. When the school told him, again, to stop and suspended him with pay until he promised to do so, he challenged the constitutionality of the school policy. The school district, a state actor, had an obligation under the Establishment Clause to keep prayer out of school, yet the Supreme Court held that the application of the Establishment Clause violated Kennedy’s religious freedom.
The Supreme Court receives tens of thousands of writs of certiorari each year and accepts a handful of those that present actual cases and controversies. Yet, the current Court takes cases in which self-avowed Christians claim that laws designed to protect marginalized groups operated to discriminate against their religious freedom, even when they cannot establish that the laws they challenged have injured them.
In the US, political strategists who combine evangelical Christianity, White Supremacy and patriarchal governance, have reached into all branches of government. They are behind the book and teaching bans in K-12 education, and they use the unique facets of US law to further their objectives. For example, the United States, uniquely in the world, considers the right of parents to determine the education and upbringing of their children to be fundamental. It also, uniquely, is not a party to the Convention on the Rights of the Child. Bills banning books and the teaching of certain topics about race and the existence of LGBTQ+ people have been presented in the federal legislature and almost half of state legislatures since the Dobbs ruling was issued. The bills are premised on the right of parents to determine their children’s upbringing. Given the US Supreme Court’s current take on these issues, this framing seems destined to win. Within a generation, young adults will have no understanding of the historical need to pass the amendments eradicating slavery or anti-discrimination laws and cases, their teachers having been prohibited from discussing this sordid past. They will never learn about the existence of slavery and discrimination in America and those who attempt to assist children can be punished under these laws.
The punishment provisions are extremely pernicious. Chilling speech with threats of civil or criminal punishment is a tool of fascists and autocrats who want to eliminate dissent. Current laws and draft bills throughout the United States punish marginalized groups including LGBTQ+ people,immigrants, pregnant women seeking abortions, and their allies. These particular attacks on the rule of law will be discussed in their own article, but can also be viewed as part of the larger strategy of these shadow theocrats, who in most cases have lobbied for and even drafted these laws. Criminalizing dissent and information is one of the first steps taken to erode the rule of law in regressive governments.
Although the US has a unique background driving its shadow theocracy, one tightly bound up in its history with slavery and white nationalism, other regressive governments are experimenting with theocratic nationalism. These include: the Taliban in Afghanistan, who assumed leadership for the second time in the past fifty years to impose a regressive interpretation of Sharia law, brutally repressing minorities and freedom of religion, and subordinating women and girls by forbidding them access to all areas of public life; Iran, currently exerting its Islamic secularism through subordination of women and girls seeking freedom of expression with a political system some call ideological totalitarianism; and India, where Modi runs a party, also in control of Parliament, ruling through Hindu nationalism. Both Iran and India hold elections and have governors elected by the people, which means that they are, in a sense democratic.
Elections alone do not protect against theocratic rule. The issue is not a lack of democracy. It is the pretense and trappings of democracy, weaponized to undermine the rule of law.
Dina Francesca Haynes is Professor of Law at New England Law | Boston, where she teaches immigration, refugee and asylum law, human trafficking and constitutional law. She has also taught at Georgetown University Law Center and American University’s Washington College of Law. She has worked in a multitude of countries for the UN and other international organizations.
