A major Supreme Court decision on gay rights could demoralize social conservatives ahead of the presidential election and deflate a key argument for why they should turn out to support President Trump in November.
The Supreme Court ruled on Monday that Title VII of the Civil Rights Act of 1964 could be used to bar employment discrimination against gay and transgender workers, with Republican-appointed Chief Justice John Roberts joining the 6-3 majority and Justice Neil Gorsuch, Trump’s first high-court appointment, writing the opinion.
Widely hailed as a breakthrough for LGBT rights, social conservatives countered that the decision changed the meaning of the statute and would have widespread repercussions for religious liberty. A major reason evangelical Christians and other religious conservatives turned out to vote for Trump in 2016 was his promise to nominate conservative judges, especially to Antonin Scalia’s then-vacant Supreme Court seat, who would protect their religious freedoms and values.
Trump appointed Gorsuch to fill Scalia’s seat. “The decision itself is unfortunate, and Justice Gorsuch’s role in the result is even more unfortunate,” said Travis Weber, vice president for policy and government affairs at the conservative Family Research Council.
“If this case makes anything clear, it is that the bargain that has been offered to religious conservatives for years now is a bad one. It’s time to reject it,” Sen. Josh Hawley, a Missouri Republican, said on the Senate floor Tuesday. “The bargain has never been explicitly articulated, but religious conservatives know what it is. The bargain is that you go along with the party establishment, you support their policies and priorities — or at least keep your mouth shut about it—and, in return, the establishment will put some judges on the bench who supposedly will protect your constitutional rights to freedom of worship, to freedom of exercise.”
Republican Supreme Court picks have disappointed conservatives before. Three Republican appointees, two of them selected by Ronald Reagan, led the court in upholding Roe v. Wade in 1992, also an election year. The GOP-nominated justice who penned that opinion, Anthony Kennedy, later wrote Obergefell v. Hodges, declaring a constitutional right to same-sex marriage. John Roberts authored the opinion that upheld Obamacare. John Paul Stevens, nominated by Gerald Ford, and David Souter, chosen by George H.W. Bush, became leaders of the court’s liberal bloc.
But Gorsuch was picked by Trump in a process that was supposed to avoid future Kennedys and Souters. He was vouched for by the district’s conservative legal networks, which now find themselves under fire from their more results-oriented social conservative allies.
“It represents the end of the conservative legal movement, or the conservative legal project, as we know it,” Hawley said. “After Bostock, that effort as we know it, as it has existed up to now, it’s over.”
“The conservative legal movement has accomplished two things: libertarian political economy (enforced by judges) and betrayal of social conservatives and traditionalists,” tweeted Hillbilly Elegy author J.D. Vance.
“The crisis moment for the ‘conservative legal movement’ has arrived,” concurred conservative journalist Josh Hammer. “The Roe v. Wade of religious liberty is here, and it was delivered by golden boy Neil Gorsuch.”
At the same time, Trump has a stronger socially conservative record than when he campaigned four years ago as a formerly pro-choice New York businessman and reality TV star and has won high marks for his judges — including, until this week, Gorsuch.
“He’s done well on other cases and has a good record overall,” said Weber. “Justice Kavanaugh was on the right side, though dissents from Thomas and Alito were stronger. President Trump’s nominees have been really stellar so far.”
“What this clearly evidences is that we need four more years of President Trump and an even stronger majority of conservative originalists throughout the federal bench,” said Jenna Ellis, a legal adviser to Trump’s reelection campaign and senior fellow at the Falkirk Center for Faith and Liberty. “If the five other liberal justices — and I’m including Chief Justice Roberts in that category — were replaced with originalists, any one or two justices like Gorsuch that are generally excellent would always be in the minority if they get one decision wrong.”
A sustained backlash against Monday’s decision isn’t guaranteed. Legal protection from discrimination does poll well, including among Republicans, and Trump won 81% of the evangelical vote four years ago. But it is likely to come up when Trump cites the Supreme Court as a reason to vote for him again.
“Moving forward, I advise President Trump to hear from other organizations additionally to the Federalist Society for judicial appointments, especially Supreme Court nominations,” Ellis said, adding that social issues should be debated by lawmakers rather than the judiciary. “President Trump has been the strongest president in modern American history in protecting religious freedom for all. I think the American people can be confident he will continue to do that.”
