Vol. 31 No. 7 (August 2021) pp. 127-129SEPARATE BUT FAITHFUL: THE CHRISTIAN RIGHT’S RADICAL STRUGGLE TO TRANSFORM LAW AND LEGAL CULTURE, by Amanda Hollis-Brusky and Joshua C. Wilson. New York: Oxford University Press, 2020. 297pp. Cloth $29.95. ISBN: 9780190637262.
Reviewed by Ann Southworth, University of California, Irvine, School of Law. Email: asouthworth@law.uci.edu.
Many conservative Christians believe that legal education took a wrong turn in the nineteenth century, when it departed from an understanding of law rooted in Christianity and biblical principles to embrace secular legalism. In their new book, Amanda Hollis-Brusky and Joshua Wilson explore how Christian Right leaders sought to respond, by building institutions to promote a “Christian worldview” within law. Several patrons established distinctly Christian, biblically oriented, religiously controlled law schools while others founded litigation-support organizations. This fascinating, thoroughly researched, and well-executed book analyzes why Christian Right leaders chose these strategies and whether they achieved their goals.
Four institutions serve as case studies. In 1986, televangelist Pat Robertson founded Regent Law School as part of his Christian Broadcasting Network empire. In 2000, Domino’s Pizza mogul and Catholic patron Thomas Monaghan provided the funding to establish Ave Maria School of Law. Four years later, Jerry Falwell, founder of the Moral Majority, opened Liberty Law School. In 2000, Alan Sears, leader of Alliance Defending Freedom, the nation’s most influential conservative Christian legal advocacy organization, chose a different approach to educating Christian right lawyers when he launched the Blackstone Legal Fellowship, a summer training program that teaches law students about natural law and places them into internships where they apply that training to legal practice.
The creation of these law schools and training programs was part of a larger strategy of institution building by the Christian Right in the 1990s and early 2000s meant to complement its mobilization in electoral politics. Law schools were obvious vehicles for changing law and legal culture because of the roles they play in socializing and credentialing lawyers (human capital), creating connections to professional networks (social capital), and generating, legitimating, and disseminating ideas about law and constitutional meaning (cultural and intellectual capital). Less obvious was that Christian Right patrons would choose to create brand new Christian Worldview law schools—what the authors call the “parallel alternative” approach—at great risk and expense rather than a less expensive “infiltration” approach, which would involve attempting to reorient existing institutions. Why did the founders decide against investing in already established religiously-oriented law schools, such as Baylor or Notre Dame? And why did Sears decide to take a lower-cost, lower-control strategy (a “supplemental” approach) with the Blackstone Legal Fellowship program?
The book assesses these choices primarily in terms of their production of resources required for legal change through the courts. Previous work has shown that “support structures” (Epp 1998), consisting of patrons, lawyers, and advocacy [*128] organizations, are necessary for litigation-based change efforts. Chapter 1 builds on this theory by conceptualizing the support structure for legal change as a pyramid in which resources flow up and down the pyramid’s levels. At the base are patrons, who provide the financial resources necessary to support law schools and legal training programs. Those institutions, in turn, supply the human, social, cultural, and intellectual capital required to prevail in litigation. Those resources can influence opinions and rulings generated by courts at the apex of the pyramid. They also hold potential to shape the broader cultural and political context in which the pyramid is embedded.
Chapters 2 and 3 explore why Christian Right leaders rejected the infiltration strategy and instead chose a combination of parallel alternative and supplemental approaches. The authors detail the missions of each of these institutions, the circumstances of their founding (their “creation stories”), and how legal hierarchies shaped their development. They show how challenges relating to finances, accreditation, and bar passage affected the ability of Christian Worldview law schools to achieve their founding visions. These institutions clashed with the American Bar Association over standards relating to diversity, academic freedom, admissions policies, and hiring criteria. The Blackstone Legal Fellowship avoided these obstacles because it did not challenge the constraints of the rules and standards that structure legal education. In hiring faculty for its training program and building its brand, its leaders prioritized avoiding the “crazy Christian” stigma (p. 8) and being taken seriously by mainstream elites and elite institutions. They recognized that credibility with legal elites would be crucial to the program’s core mission of assisting Alliance Defending Freedom in fighting for legal change through the courts.
Chapters 4-7 analyze how well these institutions have performed in terms of producing resources for litigation-based change. Chapter 4 considers the kinds of faculty and students the schools attract and the types of lawyers they produce. Chapter 5 explores the extent to which they are integrated into the conservative legal movement’s most influential legal network, the Federalist Society, and how often their faculty publish op-eds and are quoted in mainstream conservative media outlets. Chapter 6 examines the institutions’ faculty publications and in-house law reviews to evaluate their impact as suppliers of influential ideas about law. Chapter 7 considers faculty participation in litigation and citations to their scholarship in briefs and judicial opinions. The authors demonstrate variation in the records of these institutions by each of these measures.
The final chapter considers the generalizability of the pyramid model, reflects on particular choices made by the patrons of the case study institutions, and revisits the question of how success should be measured.
The authors provide an altogether convincing account of why some patrons of Christian conservative legal movement took the highest risk, highest cost approach to institution building and the tradeoffs that those decisions entailed. For Pat Robertson and Jerry Falwell, deciding to establish new law schools was consistent with their general patterns of creating institutions they could lead and control. Monahan’s announcement that he would spend $50 million to establish a new conservative Catholic law school reflected his view that Catholic education, including existing Catholic law schools, had become far too secularized. Baylor [*129] and Notre Dame, the two most plausible targets for an infiltration strategy, were unattractive options because they already had proven to be too willing to accommodate mainstream legal culture and bend to its conventions. Although Baylor was and remains committed to teaching law from a Christian perspective, it has resisted the influence of conservative fundamentalists and aligned itself with the more politically moderate elements of Southern Baptists. Notre Dame was already one of the nation’s elite conservative law schools, but its openness to the outside world, as evidenced by its policy of allowing pro-choice speakers and LGBT student clubs on campus, appeared to the founders of Christian Worldview law schools as unholy concessions to mainstream secular culture.
The authors demonstrate that the Christian Worldview law schools have largely failed to produce the kinds of cultural and intellectual resources necessary to significantly influence legal outcomes and judicial opinions. The Blackstone Legal Fellowship program has been more successful by these measures precisely because it has intentionally cultivated credibility with elite institutions and networks. The emphasis of Christian Worldview law schools on insularity over engagement and their willingness to sacrifice prestige markers to maintain control have hurt them in the most influential networks of the conservative legal movement and in the judicial sphere, where professional credibility and the hierarchies of the profession still matter greatly. Despite the mixed records of Christian Worldview law schools by the criteria emphasized in the book, the authors are careful to say that these schools have been more successful by other important measures, including their impact “within the Christian Right’s internal, popularly driven, political and cultural ecosystem” (p. 225). These institutions stand as symbols of resistance to secular legal culture, and they provide fuel for the culture wars that motivate many Christian Right voters. They are also lending energy to conservative lawmaking efforts at the state level. Many of their graduates now occupy key positions in state legislatures and agencies. In some of those arenas, credibility with elites may actually be a liability rather than a plus. But in the policymaking arena most dominated by lawyers today—the courts— Christian Worldview law schools hold much less sway. This fine book helps us understand why.
REFERENCES:
Epp, Charles R. 1998. THE RIGHTS REVOLUTION: LAWYERS, ACTIVISTS, AND SUPREME COURTS IN COMPARATIVE PERSPECTIVE. Chicago: University of Chicago Press.
© Copyright 2021 by author, Ann Southworth.
