Yesterday the Supreme Court of the United States, in a 6-3 decision, held that an employer who fires an individual merely for being gay or transgender violates Title VII of the Civil Rights Act of 1964. Trump-appointed justice Neil Gorsuch wrote the majority opinion. Justice Samuel Alito wrote a dissenting opinion. So did Trump-appointed justice Brett Kavanaugh.
Politically, the story centers on Gorsuch. Let’s remember that many white evangelicals voted for Donald Trump in 2016 because they believed he would appoint conservative Supreme Court justice who would overturn Roe v. Wade and protect their religious liberties. When white evangelicals talk about religious liberties, the right to uphold views of traditional marriage and sexuality at their institutions, and still maintain their tax-exempt status and have access to federal funding programs, are at or near the top of the list.
For example, in Believe Me: The Evangelical Road to Donald Trump, I wrote:
Court evangelicals, for example, believe that a Trump administration will protect Christian colleges and universities from losing their religious exemptions, exemptions that allow them to receive federal money despite their religious opposition to the practice of homosexuality and gay marriage. One school that would have a lot to lose if these exemptions were to disappear is Liberty University. Jerry Falwell’s school does not allow faculty members who are gay, and it has taken strong stances against gay marriage and other related matters of sexual ethics. In 2015, Jerry Falwell Jr. no doubt has his eye on the controversy surrounding a bill in the California legislature that would remove Title IX religious exemptions for private liberal arts colleges that are opposed to gay marraige or refuse to hire gay faculty. The sponsors of the bill believed that such rules represented a form of discrimination against LGBTQ students attending those schools. Biola University, a liberal arts college in Los Angeles, along with several other California Christian colleges and universities, argued that the bill, if passed, would not only violate their religious liberties but would prevent low-income students in need of financial aid from attending their institutions.
The California bill had no bearing on federal funding or institutions outside California, but it still raised much fear among Christian colleges throughout the country. Liberty University students received $445 million in federal student loans, the highest today of any four-year university in Virginia and the eighth-highest in the nation. (The high ranking in both categories is due, in part, to the sheer size of the Liberty student body.)
Many white evangelicals hoped that Trump would end these problems by appointing Supreme Court justices who would make sure that schools like Liberty, Biola, and dozens more Christian colleges, including my own institution, Messiah College, would get religious exemptions.
Again, here is Believe Me:
When conservative Supreme Court justice Antonin Scalia died suddenly on a quail hunting trip in Texas, and it became clear that the Republican-controlled Senate would not provide a hearing for Merrick Garland, Barack Obama’s appointee to replace Scalia, the presidential election of 2016 became a referendum on the future of the high court. Scalia was a champion of the social values that conservative evangelicals hold dear, and it was now clear that the newly elected president of the United States would appoint his successor.
[Texas Senator Ted] Cruz seized the day. Two days after Scalia died and five days before the 2016 South Carolina primary, Cruz released a political ad in the hopes of capitalizing on evangelical fears about the justice’s replacement. With a picture of the Supreme Court building as a backdrop, the narrator said, “Life, marriage, religious liberty, the Second Amendment. We’re just one Supreme Court justice away from losing them all.” In an interview with NBC’s Meet the Press, Cruz said that a vote for Hillary Clinton, Bernie Sanders or Donald Trump could lead American citizens to lose some of their rights. “We are one justice away from the Second Amendment being written out of the constitution altogether,” he said, “and if you vote for Donald Trump in this next election, you are voting for undermining our Second Amendment right to keep and bear arms.” Cruz pushed this appeal to evangelical fear even harder at a Republican Women’s Club meeting in Greenville, South Carolina. He told these Republicans voters that the United States was “one justice away” from “the Supreme Court mandating unlimited abortion on demand,” and for good measure he added that it was only a matter of time before the federal government started using chisels to “remove the crosses and the Stars of David from the tombstones of our fallen soldiers.”
“One justice away.” That one justice was Neil Gorsuch.
Cruz, of course, did not get the nomination. But as a I argued in Believe Me, Trump watched him (along with Marco Rubio, Ben Carson, and other Christian Right favorites) carefully in order to learn how to tap the white evangelical vote. Here is more from the book:
…Trump pulled out his most important move to win over conservative evangelicals who were still skeptical about his candidacy on May 18[,2020]. On that day, the soon-to-be-GOP nominee released the names of eleven judges whom he said he would consider nominating to the Supreme Court. It was a move straight out of the playbook. The list was put together with input from the Heritage Foundation, a conservative think thank known for defending traditional marriage, opposing abortion, and fighting for the right of religious institutions to avoid government interference. On July 13, 2016, the Pew Research Center released a study showing that evangelicals were rallying to Trump, and it predicted that 78 percent of white evangelical voters would support him in November.
Neil Gorsuch was on that list.
Many court evangelicals are not happy with Gorsuch’s majority opinion:
Franklin Graham has responded here.
We will see how this all plays out politically, but there are still some serious religious liberty questions that need to be addressed in the wake of this Supreme Court decision. Stay tuned. In my next post on this subject, I will address the way other evangelicals and faith-based institutions are responding to this decision, particularly as it relates to religious liberty.