The Supreme Court's Culture War Whiplash Is All in Your Head | Opinion

It is understandable if Americans feel like they have a bad case of whiplash given the Supreme Court's recent rulings on a string of culture war cases. In June, the conservative-dominated court ruled in favor of LGBTQ rights, and two weeks later it struck down a restrictive abortion law. Progressives heralded the rulings, and social conservatives were disoriented, not knowing what to make of the court that Donald Trump had promised to deliver to them. In July, however, the two sides switched places. In a string of three cases, the court has most recently announced that parents can use state money to send their kids to religious schools, that religious employers can be exempted from employment-discrimination claims, and that employers can deny contraceptive coverage to their employees for religious or moral reasons.

While at first glance this looks like a 3–2 record for Christian conservatives in this year's Supreme Court, a closer examination shows that their apparent losses are likely only temporary setbacks. The Supreme Court has given them detailed guidance on how to prevail in the future. In both losses, conservative court justices are guiding right-wing Christians away from "swing for the fences" legislation and court arguments, and toward an incremental approach that will both preserve the court's legitimacy and ensure them victory over the long-term.

In June Medical Services v. Russo, conservative Chief Justice John Roberts provided the final vote necessary to strike down Louisiana's restrictive abortion law. He also, however, made clear that he did not want to vote to strike the law down. Instead, he was compelled to do so by the court's ruling in a case four years earlier—a case where he voted to uphold a very similar law but was outnumbered. In explaining his decision, he bends over backwards to stress that states can continue to incrementally regulate abortion so long as such regulations don't clearly decimate abortion access.

In writing the majority opinion in Bostock v. Clayton County, Trump appointee and social conservative Justice Neil Gorsuch wrote that sexual orientation is protected under the federal Civil Rights Act. He also, however, stresses the importance of "preserving the promise of the free exercise of religion enshrined in our Constitution." Thus, while LGBTQ activists have won here, social conservatives can return in future disputes arguing that the court needs to deliver on this promise. As the most recent rulings show, the court has already begun to do just that.

The three Christian right court victories all focus on religious liberty. In the religious schools case, the court determined that Montana's prohibition on parents using state scholarships at religious schools unconstitutionally discriminated against religion. In the employment discrimination case, it argued that allowing courts to make decisions about who an organization decides is a "minister"—even if it is a teacher, and not a minister as commonly conceived—would unduly risk "entanglement in religious issues." Finally, in the contraception case, the court ruled that requiring such coverage against an employer's moral or religious objections "substantially burdens the exercise of religion."

The common theme here is that the court majority in these cases only sees one right at stake: the right to freely practice religion. In the cases where progressives prevailed, the court majority saw competing rights claims, as well as the limits set by past rulings.

Chief Justice John Roberts
Supreme Court Chief Justice John Roberts arrives to the Senate chamber for impeachment proceedings at the U.S. Capitol on January 16 in Washington, D.C. Drew Angerer/Getty

The task, then, for cultural conservatives moving forward is to continue to develop an expansive version of religious liberty and return to an incremental politics of abortion—an under-the-radar approach that relies on state laws to chip away at women's abortion rights. Within the Christian right, an elite set of legal organizations have risen to prominence by being attentive to these cues given by the justices.

The Christian conservative legal movement is a collection of litigators and institutions related to, but distinct from, the secular conservative legal movement popularly understood through the Federalist Society. Its early years were defined by its insistence on making legal arguments rooted in religion's perceived special status and for an all-or-nothing approach to litigation. But its most effective organizations have come to learn that the best strategy for winning cases is to pay careful attention to what the Supreme Court has signaled in its rulings.

Pragmatic litigation organizations like Becket and Alliance Defending Freedom have established their reputations as patient, pragmatic and thus highly successful litigators. While they and others in the Christian conservative legal movement undoubtedly wish that they had a clearer string of victories this summer, we can expect to see them back in the court soon. What's more, one should expect that the next time they appear in court, they will demonstrate through their legal arguments that they have listened to the justices. In turn, they should expect that the justices will listen more attentively to them.

Joshua C. Wilson is an associate professor of political science at the University of Denver. Amanda Hollis-Brusky is an associate professor of politics at Pomona College. They are the co-authors of the coming book Separate but Faithful: The Christian Right's Radical Struggle to Transform Law & Legal Culture.

The views expressed in this article are the authors' own.

The Supreme Court's Culture War Whiplash Is All in Your Head | Opinion