Michael Wear is chief strategist at the AND Campaign.
But despite years of hand-wringing, posturing, stall tactics and fundraising, Supreme Court Justice Neil M. Gorsuch — nominated by President Trump and the pride of Senate Majority Leader Mitch McConnell (R-Ky.) — was the one to write Monday’s opinion protecting LGBTQ workers under federal law.
Religious conservatives were always wrong to deny basic LGBTQ rights in order to protect themselves. But Monday’s Supreme Court decision makes it clear that their approach was both morally and strategically flawed. The ruling also shows that social conservatives’ support for Trump was a mistake from the start.
It was a mistake because religious conservatives’ concern about conceding to what they believe to be an immoral culture on sexuality led them to concede to that culture through their support for a candidate and president who would undermine and make a mockery of their values himself. It was at the very moment that social conservatives judged Trump to be a worthy ally that they undermined whatever moral claim they had. And the second they thought they could use Trump was the second Trump knew he could use them.
In 2016, Trump offered little in the way of concrete policy commitments, but he did promise social conservatives rock-solid judges and the protection of religious freedom, which would surely be eroded, he claimed, if Hillary Clinton became president. Social conservatives fell in line, and yet their fears were realized nevertheless. On the most important case to face the Supreme Court on the religious-freedom challenge that concerned social conservatives most, Trump’s nominee voted no differently than Merrick Garland would have.
This has always been the problem with voting for presidents based on expected court appointments. For social conservatives, the courts are important insofar as they address abortion and religious freedom. But those cases represent only a sliver of the Supreme Court’s caseload. So not only do Christians who vote this way send the message that they do not care how judges vote on voting rights or immigration law or workplace protections for workers, but they also make their No. 1 voting priority something they can’t even hold the person they’re voting for accountable to once they’ve made the appointment.
While many expect pro-life decisions from the court in the future, Trump’s other appointment to the bench, Brett M. Kavanaugh, has already disappointed social conservatives by denying certiorari for cases that some hoped would pave the way for defunding Planned Parenthood. It remains to be seen whether the pro-life movement’s allegiance to Trump will help or hurt their cause in the medium and long terms.
But in the meantime, Trump seeks a second term, and the religious right will be crucial to his electoral success. Social conservatives now know Trump is incapable of protecting them. They should also now know that his protection was never worth the cost. Trump failed to keep his promises to them and should be held accountable for that in the only way possible: ensuring he’s not reelected.
Wouldn’t that mean allowing a Democrat in the White House? Perhaps. But it is also possible that even unified support among social conservatives wouldn’t keep Joe Biden from winning the presidency, given Trump’s political toxicity with broad swaths of the electorate. Instead of voting for Trump, religious moderates and conservatives, many of whom are already Biden supporters and voted for him in the Democratic primaries, should view the general-election campaign as the opportunity to begin a conversation with Biden on religious freedom that can continue into his presidency. Leading Democratic proposals for addressing LGBTQ rights inadequately protect religious freedom; this is a point to press, not license to support Trump.
The Supreme Court’s decision Monday was not a final word on the subject of religious freedom, or on LGBTQ rights. The court’s ruling still leaves unsettled issues including employment rights at religious workplaces, the operations of wedding vendors and federal funding for religious organizations with a sexual ethics policy.
And Monday’s opinion gives our elected leaders one more opportunity to sort the question out themselves, noting that the Religious Freedom Restoration Act still applies and “operates as a kind of super statute,” one more opportunity to provide leadership and create a legislative framework for holding our country together when it comes to religious-freedom issues.
For those who have supported Trump despite his character, lack of competence and other policies, because of the weight you place on religious freedom: It is better to choose a governing partner with whom you will sometimes disagree over a bully who cannot take you where you want to go, and is not heading in the right direction in the first place.