The Culture of Conservative Christian Litigation

Vol. 16 No. 3 (March, 2006) pp.256-260

THE CULTURE OF CONSERVATIVE CHRISTIAN LITIGATION, by Hans J. Hacker. Lanham, MD: Rowman & Littlefield, 2005. 232pp. Cloth. $70.00. ISBN: 0-7425-3445-6. Paper. $26.95. ISBN: 0-7425-3446-4.

Reviewed by Laura J. Hatcher, Visiting Assistant Professor, Departments of Political Science and Legal Studies, University of Wisconsin at Madison; and Assistant Professor, Department of Political Science, Southern Illinois University at Carbondale. Email: lhatcher [at] wisc.edu.

Over the course of the last decade, many researchers have turned their attention to efforts by various conservative groups in the US to change the law, legal institutions, and society through legal practice. Among other findings of this developing body of scholarship is that what is sometimes called “the conservative legal movement” is in fact multifaceted, with litigators within the movement vying for clients, arguing over the best legal positions to take, and competing for resources (See e.g., Heinz et al. 2002; Southworth 2004; Southworth 2005; Den Dulk 2002; Den Dulk forthcoming; Hatcher 2005; Dudas 2006; McCann and Dudas forthcoming). And although there is a growing body of journal articles, book chapters, and other works still in-progress, Hans Hacker has completed one of the first book-length projects to be published (see Lee Epstein’s CONSERVATIVES IN COURT (1985) on these issues within political science). Scholars interested in the broader conservative movement, the conservative legal movement, Christian litigation, as well as contemporary issues in civil liberties and civil rights will want to have it on their shelf.

While it is a slim volume, Hacker provides a fascinating description of key organizations and individuals involved in conservative Christian litigation. This description alone, drawn from his extensive interviews with key actors, as well as review of various primary sources, makes it a valuable contribution to our understanding of the conservative legal movement. And although Hacker could have developed a stronger analysis of the role of religious ideology to facilitate more nuanced portraits of the organizations, the flaws are far from fatal in this clearly written and engaging work. Indeed, what we have here is a provocative book that raises some interesting questions for future research. Because of this, the following review will both engage Hacker’s work and also briefly touch upon some potential avenues for research to which it leads.

Hacker begins with a discussion of the importance of understanding political culture. He relies on Aaron Wildavsky’s work and asserts that the values shared by individuals in organizations partly legitimate the practices we find among Christian litigators. Paralleling Wildavsky, Hacker argues that the “preconfigured set of values and socially viable options, provide structure for individuals and organizations” (p.10). By examining the culture of the conservative Christian litigators, he hopes to identify core group values as well as broad group goals, and then provide a systematic study of their [*257] political actions. Thus, Hacker organizes his discussion around three key points: the characteristics of organizational life; goals, structure and resources; litigation emphases and behavior. He proceeds through case studies of three important organizations—the American Center for Law and Justice (ACLJ), the Liberty Counsel, and the American Family’s Association’s Center for Law and Policy (CLP). In the descriptions of their strategies, resources, and the individual lawyers, the reader is provided a remarkable portrait demonstrating variation among a group of activist lawyers sometimes discussed casually in the media as if they are monolithic in their understandings of what the law ought to be. And, simultaneously, Hacker provides a sense of how their written briefs and oral arguments are a product of the internal cultures of these organizations.

One of the more striking discussions comes in the fourth chapter, concerning the CLP’s self-imposed limitations on their litigation agenda. According to Hacker, the firm has carefully determined one of its primary objectives to be a desire for policy influence. The CLP, unlike the other two firms, pursues trial-level litigation, and though it sometimes is involved with intermediate level appellate work, it rarely litigates precedent-setting appellate cases. In order to streamline their work, they have placed limitations on their litigation activity that include engaging in cases involving government action (rather than cases that involve private employers or private individuals); and they rarely file as amicus curiae (a well worn strategy of conservative litigators – see O’Connor and Epstein 1983). Along with these two internal limitations, a third, external, limitation is placed on the firm’s activity due to its choice to settle many of its cases: much of its work is not part of the public litigation record. Hacker explains that mediated conflicts, as well as assistance provided to local governments in creating particular policies have been rendered invisible to the public eye, yet this work is highly valued by the firm (p.113).

One wonders, however, what the CLP lawyers believe the mechanism for influencing policy is when working at the trial level, given their extensive use of settlement, negotiation, and mediation as means for achieving wins for their clients. Is it the case that their policy objective is only fulfilled through their work on local government policy initiatives? Or do they believe that they have seen policy change as a result of engaging the government in cases that it settles?

It is clear from Hacker’s discussion that much of the firm’s work is carried out in the name of individual clients who have run into problems with what the firm sees as governmental violations of the civil rights of Christians. Less frequently, but also importantly, is work they have done on behalf of municipalities to defend certain types of ordinances from litigation. Equally as clear is Hacker’s assertion that their work has policy impact. But what is unclear, and matters from the perspective of political culture and the study of litigation and social change, is what mechanisms around such tactics influence public policy, what form those [*258] results take, and whether the lawyers have evidence for believing that this is an effective tool. Hacker’s account instead turns to the important work these lawyers do in drafting referenda and other policy initiatives (drafting of ordinances in municipalities being chief among them). Though not a critical gap in the study, it certainly could provide a very interesting future project for researchers to consider what possible policy implications this work has – especially when played out nationally – on norm formation through trial litigation and negotiations.

Given the literature on trial courts, settlement negotiations and mediation, there are some possible explanations (see, Mather 1995). For example, perhaps the lawyers have seen that their settlements affect behavior down the road in specific jurisdictions, and so they see broader policy implications for this large body of their work that is not part of the public record. While I suspect this to be likely, Hacker does not provide data from his interviews demonstrating such an explicit awareness on the part of his research subjects. A study of such affects would greatly enhance not only our understanding of Christian Right litigators and their influence on governmental action, but also of the way in which trial level litigation is linked to broader political and social change.

The great usefulness of organizing his chapters around the key points he identifies is that it provides the basis to compare the organizations in the last chapter of the book. Hacker does two different comparisons: one, based upon the variables he uses to structure his chapters, which are directed to understanding their litigation behavior; and, a traditional interest group comparison using goals, organizational structure and resources. He finds that limiting the assessment to a more traditional interest group approach results in a very general comparison that suggests little variation among the three organizations. However, when Hacker focuses on litigation behavior, he is able to demonstrate fairly significant differences. Moreover, he is able to account for some of these differences through a more detailed discussion of the role religious ideology plays in each organization.

This final chapter, for those scholars interested in understanding variation within the conservative legal movement, is perhaps the most interesting. Hacker describes it early on as a “tentative first step” in understanding how beliefs shape the choices these lawyers make in their litigation activity (p.137). He does, indeed, provide some ideas that we should consider as we move forward in our work on the conservative legal movement. For example, the willingness of some lawyers to be [*259] more pragmatic, while others choose to limit their activity and maintain a higher degree of idealism, is quite striking. Researchers may want to ask to what degree other conservative legal activists have followed a similar path, and whether there are significant differences between more secularly oriented-conservative litigators that follow a similar pattern. Indeed, in my own work on conservative libertarian lawyers, there are indications that some are more willing, at least some of the time, to be more pragmatic, while others find pragmatism to be problematic (Hatcher 2005). It would also be intriguing to know to what degree this difference is shaped by an intersection of religious belief (or some other form of idealism) among activist lawyers and their perceptions of the efficacy of appellate litigation to create social and political change. One suspects that, perhaps, appellate litigators are likely to find their idealism pressured in ways that those working mostly at the trial level or in state courts would not. Yet, the choice to be an appellate litigator may be shaped by multiple factors, where religious idealism is only one variable (and others might include ambition, perhaps a strong belief in upper courts as creators of social change, and so forth).

While the description of the culture of conservative Christian litigation is important and helpful, the role of cultural practices in the litigation process is obscured by the stories Hacker tells so well. In his final chapter he begins to work out a notion of cultural practices that includes the importance of religious belief in giving them shape. While I think this theoretical work needs to be advanced further, Hacker acknowledges that he is making suggestions for future work and does not make grand claims that are unsupported by his analysis. The strength of the book lies in the amount of detail and evidence Hacker provides in his descriptions, as well as the way in which he has tied the litigation activity to internal organizational culture. It is a book well worth reading, and one that should provide us with much to consider as we move this important area of research forward.

REFERENCES:

DenDulk, Kevin. 2001. “Prophets in Caesar’s Courts: The Role of Ideas in Catholic and Evangelical Rights Advocacy.” Doctoral dissertation. Madison: University of Wisconsin.

DenDulk, Kevin. Forthcoming. “In Legal Culture, But Not Of It: The Role of Cause Lawyers in Evangelical Legal Mobilization.” In Austin Sarat and Stuart Scheingold (eds). CAUSE LAWYERING AND SOCIAL MOVEMENTS. Palo Alto: Stanford University Press.

Dudas, Jeffrey. 2005. “In the Name of Equal Rights: ‘Special’ Rights and the Politics of Resentment in Post-Civil Rights America.” 39 LAW AND SOCIETY REVIEW 723-757.

Epstein, Lee. 1985. CONSERVATIVES IN COURT. Knoxville: University of Tennessee Press.

Hatcher, Laura. 2004. “Economic Libertarians, Property, and Institutions: Linking Activism, Ideas and Identities among Property Rights Activists.” In Austin Sarat and Stuart A. Scheingold (eds). THE WORLDS CAUSE LAWYERS MAKE: STRUCTURE AND AGENCY IN LEGAL PRACTICE. Palo Alto: Stanford University Press.

Heinz, John, Anthony Paik, and Ann Southworth. 2003. “Lawyers for Conservative Causes: Clients, Ideology, and Social Distance.” 37 LAW AND SOCIETY REVIEW 5-52. [*260]

Mather, Lynn. 1995. “The Fired Football Coach (Or, How Trial Courts Make Policy).” In Lee Epstein (ed). CONTEMPLATING COURTS. Washington, D.C.: Congressional Quarterly.

McCann, Michael W. and Jeffrey Dudas. Forthcoming. “Retrenchment and Resurgence: Mapping the Changing Context of Movement Lawyering in the United States” In Austin Sarat and Stuart Scheingold (eds). CAUSE LAWYERING AND SOCIAL MOVEMENTS. Palo Alto: Stanford University Press.

O’Connor, Karen and Lee Epstein. 1983. “The Rise of Conservative Interest Group Litigation.” 45 JOURNAL OF POLITICS 479-489.

Southworth, Ann. 2004. “Professional Identity and Political Commitment among Lawyers for Conservative Causes.” In Austin Sarat and Stuart A. Scheingold (eds). THE WORLDS CAUSE LAWYERS MAKE: STRUCTURE AND AGENCY IN LEGAL PRACTICE. Palo Alto: Stanford University Press.

Southworth, Ann. 2005. “Conservative Lawyers and the Contest Over the Meaning of ‘Public Interest Law.’” 52 UCLA LAW REVIEW 1223-1277.

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