Michael Brendan Dougherty has some advice for President Trump that I think is worth repeating, in regards to replacing Justice Anthony Kennedy this fall: Appoint Amy Coney Barrett, Trump’s recent addition to the 7th Circuit Court of Appeals.
I agree. For one thing, Barrett is only 46 years old and could easily serve on the court until 2060. It also doesn’t hurt to put a conservative woman on the court. But in addition, this would be an especially shrewd move ahead of the midterm elections.
From a purely political perspective, Republicans would benefit from provoking a September battle royale that motivates the Right. That’s because Democrats won’t be able to help themselves with their hostility toward her religious faith, as they failed to do during her circuit court confirmation.
[Also read: Meet the contenders to fill Justice Anthony Kennedy’s seat on the Supreme Court]
Since it’s Justice Kennedy’s seat that’s opened up, I think it’s worth looking back at the forgotten conclusion in his majority opinion in Obergefell, the famous same-sex marriage case:
Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered.
Nothing else in Kennedy’s majority opinion has been proven quite so false so quickly as these lines. The people who hold the traditional views he mentioned are today being hauled in front of human rights tribunals — not for bigotry, but for refusing to give their affirmative assent to something they continue to believe is as wrong now as it was before 2015. They’re only narrowly winning their Supreme Court cases to uphold their basic human rights, and on the narrowest of grounds, as the decisions from this term demonstrate. They are also having religious tests applied to them when they are nominated to serve in government, as Barrett herself proves.
Unfortunately, religion is a partisan issue now, because Democrats have made it so. It’s now a Democratic talking point to disparage religious freedom as someone’s excuse for bigotry, not the centuries-old principle of this nation’s founding that comes first in its Constitution’s Bill of Rights, before any other right listed there.
Until this week, current trends were looking really bad for religious adherents’ rights, especially considering that they don’t belong to any of the identity groups that are trendy nowadays. And this isn’t just about gay marriage — in fact, that’s one of the areas where the accommodation has been smoother than others.
As Dougherty notes, the Obama administration moved a gratuitous measure through the regulatory process designed to antagonize every Catholic institution in America by forcing them all to fund contraception. They took the Little Sisters of the Poor all the way to the Supreme Court over something that was never even required by the Obamacare law itself. The Left more broadly is fighting to marginalize anyone who adheres to the shared scientific and religious (as opposed to the unscientific feelings- and inclusion-based) understanding of gender.
Democratic lawmakers, while hypocritically claiming that pro-lifers don’t care or do anything to help mothers and babies after birth, are simultaneously making war against the thousands crisis pregnancy centers that religious believers established all over the nation to do just that. If they’re even willing to let them exist, the Democrats want to force them, against their First Amendment rights, to participate in advertising abortion, the killing of babies. This was prevented only by a narrow 5-4 decision. Even worse, liberals are dead-set on forcing Catholic hospitals to actually perform abortions. Again, they are probably only a few more Democratic-appointed judges away from winning a case like that one. (Don’t think it can’t happen here; they’re having this fight right now in Ireland.)
During Neil Gorsuch’s confirmation hearing, Democratic senators were visibly confounded by the Hobby Lobby decision (which Gorsuch had written at the lower court level) and its simple affirmation that one’s participation in running a business doesn’t eliminate one’s personal freedom of sincere religious exercise and conscience. Sen. Chris Coons, D-Del., by no means the most liberal Democrat on the Judiciary Committee, blurted out the completely ridiculous statement that “There is an enduring tension or contest in our history between individual freedom and religious free exercise.” No one with any understanding of U.S. history would agree with that statement, and I’m quite certain his predecessor Joe Biden would never have uttered such a thing. But what Coons said is perfectly understandable for today’s new Left, as hostile toward religion as it has become.
I can’t speak for everyone, but among my family and friends who voted for Trump (I did not, and many of them would admit only in secret that they were going to), it kept coming down to fears that a Clinton victory might end religious freedom in this country for good. Can anyone say they didn’t have a point, when basic, previously unquestioned freedoms like the right not to have to personally participate in or recommend abortion are, incredibly, just one justice away from disappearing?
Look back for a moment at Barrett’s confirmation hearing for the 7th Circuit. She was given an inquisition by Democratic Sens. Dick Durbin and Dianne “The Dogma” Feinstein over her popery, in what turned out to be one of the Democrats’ worst own-goals since Trump’s election. With the cover of anonymity afforded by liberal journalists, Senate Democrats also viciously attacked Barrett in the press for her association with my old high school and the Christian group that founded it. (It’s definitely one of the ten best schools in all Indiana, and quite affordable for middle class families, at least when I went there.)
In a much bigger, higher-profile version of that same fight, Democrats and especially their supporters will be even less capable of controlling their hostility and anger. In Barrett’s case, Dougherty is right that her large family and evident religious practice, and even the fact that she is a professionally accomplished woman, will enrage the Left beyond anything we saw in Gorsuch’s confirmation. And that’s the whole point. It will galvanize Trump’s most reluctant supporters, especially in the states with Senate elections this year.
