Publications by R. D. Rubin
Selected Articles:
“The Righteousness of Difference: Orthodox Jews and the Establishment Clause, 1965–1971,” in The Right Side of the Sixties: Reexamining Conservatism’s Decade of Transformation, ed. Laura Jane Gifford and Daniel K. Williams (New York: Palgrave Macmillan, 2012), 121–40.
“Establish No Religion: Brevard Hand's Civil-Libertarian Turn,” Journal of Church and State, 58 (March 2016), 98–116).
2017 Book:
Robert Daniel Rubin, Judicial Review and American Conservatism: Christianity, Public Education, and the Federal Courts in the Reagan Era (New York: Cambridge University Press, 2017).
Podcast Episode, Research on Religion (May 28, 2017).
Review of Judicial Review and American Conservatism,
by Adam Laats, American Historical Review (Feb. 2018).
Judge W. Brevard Hand and Robert Daniel Rubin
In 2017, I published Judicial Review and American Conservatism with Cambridge University Press. The book describes an important shift in the American Christian Right during the 1980s. I tell this story as it played out in Mobile, Alabama, where a local conflict pitted a group of conservative evangelicals, a sympathetic federal judge, and a handful of conservative intellectuals against a religious agnostic opposed to prayer in schools and a school system accused of promoting a religion called “secular humanism.” The twists in the Mobile conflict speak to the changes and continuities that marked the relationship of 1980s religious conservatism to democracy, the courts, and the Constitution.
During that decade, religious conservatives reconceived their relationship with the federal courts. Prior to that time, they had employed majoritarian and states’-rights rhetoric in resisting the Supreme Court’s rights revolution, and especially the Court’s emerging case law regarding school prayer, Bible reading, and the teaching of biblical accounts of human origins. Religious conservatives’ political strategies and day-to-day political behavior reflected their understanding of themselves as “the people” entitled to make laws in conformity with their preferred moral precepts. Their populism was consistent with a more general conservative animus toward Supreme Court decisions protecting the rights of unpopular minorities. Christian majoritarianism was manifested in the numerous state legislatures that sought to circumvent Court rulings, and among the countless schoolteachers who persisted in the Christian-based practices long carried out in their local schools. This was especially true in the United States South, which had long resented interference by “carpetbagger” federal judges on behalf of minorities, including non-Christians, that were marginalized in electoral politics.
The Reagan Era witnessed a shift in this attitude toward the courts. At the time, a handful of astute evangelical and Catholic lawyers recognized that majoritarian resistance could not likely succeed, and that a different stance was, in fact, available to them. Breaking new ground, they presented their clients as yet another beleaguered minority entitled to the courts’ solicitude. This shift influenced conservatives in the United States Senate and the Reagan Justice Department. Longtime opposition to “judicial activism” made way for a kind of right-wing civil libertarianism.
Robert Daniel Rubin at a highway rest area
My book examines this development. By alternating its point of focus between the federal government in D.C. and the local conflict in Mobile, the study demonstrates the great extent to which events on each level informed events on the other. As the nationwide Christian Right gained increasing influence within broader American conservatism, so did the former help conservatives in general to reimagine the federal courts as an institution that could be used to advance their interests. The book’s ground-level story, situated around a two-phase federal court case, begins with conservative majoritarianism and ends with a newly waged minority-rights campaign on behalf of purportedly traditional Christianity.
In its litigation, the Christian Right reoriented itself as a minority surrounded in society by secular humanists. Worldviews not aligned with what it saw as genuine Christianity were categorized by the Christian Right as a secularist religion bent on eroding biblical morality. Public schools were cast as ground zero in the battle. Much as Jews, atheists, and religious liberals had done for decades, Christian conservatives now asserted that education could never be religiously neutral as long as it contained traces of any religion at all. For them, this included the religion of secular humanism. Secularism, they protested, did not ensure religious neutrality; to the contrary, it violated the evenhandedness required of state-run education.
The Mobile case reveals the increasing prominence of this secularism-as-religion argument. Through focusing on events in Alabama, Judicial Review and American Conservatism captures the singularity of the broader story's thrust and the multiplicity of its dimensions.