Liberals have won enough big battles in America’s culture wars in recent years – most notably the rapid and still growing support for same-sex marriage – that they may have persuaded themselves that their views were universal and their victories would continue. But as two new Supreme Court decisions relating to religion made clear, conservative forces are far from down and out.
On Monday, the high court used a unanimous unsigned opinion to announce it would take up the constitutionality of President Trump’s proposed temporary ban on incoming travelers from six mostly Muslim nations – Libya, Iran, Somalia, Sudan, Syria and Yemen – when its next session begins in October. In so doing, justices overruled several federal trial and appellate courts and allowed the ban to take effect, with one significant exception: It “may not be enforced against foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States,” meaning close family members or offers of jobs or college admissions.
Despite this exception, the unanimity of the ruling suggests there is a strong chance the Supreme Court will eventually uphold the broad discretion of presidents to use their authority to protect national security – even if it appears to be driven by religious bias. Liberals who say it’s irrational for Americans to worry about domestic Islamist terrorism haven’t gotten very far in the court of public opinion – one poll showed one-third of Democrats are for Trump’s travel ban – and now they’ve been rebuffed by the highest actual court as well.
In the second decision, the Supreme Court ruled 7-2 that the state of Missouri could not exclude a Lutheran religious school from receiving a grant from a government program that reimburses the cost of rubberizing the surface of playgrounds to make them safer. In writing the majority opinion, Chief Justice John Roberts wrote that it was “odious” to exclude a religious organization from public benefits available to other groups. Roberts’ opinion made a careful distinction between government funding for churches for nonsecular purposes and government funding in support of religious instruction or advocacy.
But in dissent, Justice Sonia Sotomayor depicted the decision as a profound break with American legal tradition “by holding, for the first time, that the Constitution requires the government to provide public funds directly to a church” – a ruling that could weaken “this country’s longstanding commitment to a separation of church and state” and spur what The Atlantic called “a new wave of legal challenges.”
In another decision on Monday, the court confirmed it would hear a case involving a Christian bakery owner who declined to make a cake for a gay couple – indicating at least some sympathy for the argument that religious freedom may extend to business owners’ decisions on whom to serve.
How will the court rule? That’s unclear. What’s clearer is what impact Trump’s Supreme Court nominee Neil Gorsuch could have. If the 15 cases in which he has ruled are any indication, the Fivethirtyeight website found that Gorsuch may settle to the right of the conservative lion he replaced, Antonin Scalia. In each of these cases, Fivethirtyeight noted, Gorsuch has sided with the court’s most conservative member, Justice Clarence Thomas.
Gorsuch’s selection may also be driving the swirling rumors that the court’s swing vote – libertarian-conservative Justice Anthony Kennedy – may soon retire. If Kennedy is confident his replacement would be someone he finds as impressive as Gorsuch, his former clerk, that might make retiring an easier decision. If that happened, the court could swing substantially to right. “If Kennedy retires,” CNN wrote, “Donald Trump’s legacy is set.”
Time will tell if Monday’s opinions are as far-reaching as they seem, or if the court shifts even further to the right with or without Kennedy. But there’s no disputing the decisions reflect a view of the world much closer to one shared by millions of Trump voters. If liberals want their causes to succeed, they’re going to need a bigger tent. As it stands, conservatives control the executive, the legislative and the judicial branches of American government.