The 2016 US election is over, and now begins the elaborate work of attempting to understand why Americans voted the way they did last year. Amid soul-searching about media bias, liberal smugness, and misleading data, many commentators have begun to set themselves to the task of making sense of the surprising proportion of American Christians – both Protestant and Catholic – who ultimately cast their ballots for a candidate such as Donald Trump.
Notwithstanding the many surprises of this election, one characteristic of Trump-supporting Christians is likely to remain a certainty: such Christians were deeply averse to the possibility of a Democrat being in a position to appoint one or more justices to the US Supreme Court.
How has the Supreme Court come to assume such a pivotal position in the eyes of American Christians this election? Some answers to this question are more straightforward than others. Perhaps the most immediate of answers is the vacancy created last year by the death of conservative paragon Antonin Scalia. While this election was marked by repeated invocations of the threat of “radical” liberal appointments to the Court, this threat has taken on particular urgency in its reference not merely to potential future appointments, but to the actual vacancy left by the Court’s most vociferous conservative.
Setting aside the pressing case of Scalia, however, it is useful to consider a somewhat less straightforward answer to the question of why so many Christians have shown themselves willing to afford pride of place in this election to the Supreme Court. This answer revolves around a conviction, widely held among such Americans, that the Court has become hostile to Christianity and, perhaps, to religion in general.
Where does this perception come from? Is there any truth to this assessment of the Court? I have explored these questions and sought to provide an understanding of how it is that so many American Christians have developed the impression that the judicial system is stacked against them. And, though it will likely strike many legal professionals as uncomfortable, my conclusion is that such Christians have good reason to have come to this conclusion, at least when it comes to the high-profile issue of same-sex marriage.
In my previous work, I outlined a trajectory of landmark Supreme Court cases that has served to constrain the ability of so-called traditional marriage advocates to raise religious or even broadly moral objections to same-sex marriage within the courtroom. This trajectory has given rise to a series of discursive acrobatics within the traditional marriage movement, as advocates have endeavored to “secularize” their courtroom arguments by focusing on children’s welfare or social stability rather than upon the religious beliefs and doctrines that so clearly inform their positions on this issue. With full awareness of the many important reasons that exist for refusing to allow religious arguments to serve as foundations for public policy, legal scholars and professionals should nevertheless take seriously the likelihood that this increased constraint will be perceived by many Americans as an unfair burden upon their exercise of religion. To fail to take this phenomenon seriously, I argued, is to risk exacerbating a perception held by many Americans that the courts are fundamentally hostile to religious conservatives. It also quite possibly risks contributing to a turn among such conservatives to the other two branches of government for remedy against an “activist” Court.
The landmark ‘Obergefell v Hodges’ decision ultimately exemplified many of the concerns raised in my previous work. In this case, I argue, the Court demanded and then rejected precisely the brand of secularized argumentation that I described in 2014. In so doing, it not only handed a definitive defeat to a legal strategy that has been a mainstay of contemporary traditional marriage advocacy, but it also reproduced and even inflamed a set of deep-seated tensions lurking at the heart of our liberal democratic legal system.
Amid the post-election soul-searching now underway, it is important to consider the manner in which the significant Christian backing of this most unchristian candidate is at least partly a symptom of a broader history of church-state jurisprudence that has left many Americans simultaneously contemptuous of the Supreme Court and eager to see their elected representatives take the Court in hand in the name of religious freedom.
Image credit: U.S. Supreme Court Building by AgnosticPreachersKid. CC-BY-SA 4.0 via Wikimedia Commons.