Before the election, it was common to hear experts say the “culture wars” were over, and that the left had won. True, there were debates about how progressives could most effectively consolidate their gains, and about whether they should be magnanimous in victory. But participants in these debates shared an assumption that, for instance, women’s right to choose and marriage equality were secure.
After the election, all that has changed. Although some liberals and progressives hold out hope that President Trump is uninterested in certain social issues, like same-sex marriage and transgender rights, their optimism is misplaced. Whatever Trump himself is saying, and whatever his voters endorsed, the new Republican regime will vigorously prosecute the so-called culture wars. (Not that this frame is the only or most useful way of understanding the Trump regime as a whole — we use it only as shorthand for the social questions that are likely to arise.) Now is the time to think about which issues will be most important, and how resistance can be mobilized around them.
Some of the people who voted for Trump undoubtedly support traditional religious positions on questions of marriage equality, transgender rights, and reproductive freedom for women. Sensing that such people made a decisive difference in the election, some liberal commentators have concluded that progressives need to learn to speak to cultural conservatives without denigrating them.
It should matter that Trump lacks a mandate on social issues
But even setting aside that Trump lost the popular vote by almost 2.9 million votes, this diagnosis is too simple. The voters who tipped the election in Trump’s favor appear to have been driven by economic concerns, and other resentments, rather than the standard basket of “culture war” issues. Although many religious traditionalists voted for Trump, they do not seem to be the ones who made the difference that handed him the election.
According to 2016 exit polls, white evangelicals supported Trump at a rate of 81 percent, compared to 16 percent for Clinton. That’s overwhelming, but not noticeably more overwhelming than their support for Romney in 2012. And Roman Catholics actually moved away from the Republican Party, if anything, supporting Trump only 52 percent to 45 percent, as compared to 57 percent to 42 percent for Romney. So religious traditionalism does not seem to have decided this election.
What better explains the results is the shift among lower-income voters. They moved strongly rightward from 2012 to 2016, or they simply stayed home. Voters earning less than $50,000 failed to vote for the Democrat — that is the main story of the election of 2016, though of course there were other factors as well.
People wishing to downplay the impact of the election on civil rights also have pointed to statements by Trump himself. During the campaign, Trump once posed for photographs holding a rainbow flag. And after the election, Trump confirmed that he regarded the same-sex marriage decision, Obergefell v. Hodges, to be settled law, and that he was “fine with that.” But Trump’s own motivations, even if they could be determined, are only part of the story.
Even if Trump does not have a mandate to legislate on social issues, and even if he himself has mixed feelings on such questions, we should expect to see new laws favored by religious traditionalists. That’s why minimizing the likely impact of the Trump regime on social equality would be a mistake.
Several of the people he is choosing to run the government have not been shy about their desire to legislate traditional religiosity. Consider Vice President Mike Pence. As governor of Indiana, he signed that state’s Religious Freedom Restoration Act, which he was forced to scale back after a national outcry over its likely impact on LGBTQ civil rights. Moreover, he has described himself as “a Christian, a conservative, and a Republican — in that order.”
Much the same could be said of Steve Bannon, chief strategist for the White House, who has spoken of the need to defend the “Judeo-Christian West,” and many other members of the Trump administration and the new Republican Congress. They are committed religious conservatives who can be counted on to press these issues. Will President Trump stand in their way?
And remember that on certain social issues, Trump himself has been leading the charge, if only out of opportunism. Speaking after the election, Trump reiterated his intent to name a Supreme Court justice who would overturn Roe v. Wade. (He was unable to say why the same person would not vote as well to overturn Obergefell, the decision establishing a right to gay marriage, which, again, Trump said was a settled question.) Putting all of this together, it becomes almost certain that America will be entering a new phase of conflict over laws that protect the equal rights of women and minorities.
Progressives should not hesitate to resist unjust encroachments on civil rights. Doing so is unlikely to result in negative electoral consequences, if our analysis is correct. Economics drove Trump’s victory, not primarily social issues, and voters who supported him because of outdated conceptions of women’s equality and LGBTQ rights should be resisted, not validated. Protecting full and equal citizenship for all Americans remains a moral and legal imperative.
New religious-freedom laws could undermine civil rights
What issues are likely to arise in this new phase? Look for Congress to pass the First Amendment Defense Act or FADA — a piece of legislation that Trump has pledged to sign, even though it would do serious harm to the same-sex spouses that he purports to be “fine with.”
The core provision of FADA prohibits the federal government from imposing any “tax, penalty, or payment” on a person who acts according to a religious or moral belief that marriage should be confined to one man and one woman (or that sexual intimacy should be confined to that sort of traditional marriage). This language goes beyond the protection for religious actors contained in the Religious Freedom Restoration Act, the law that fueled Burwell v. Hobby Lobby. (Hobby Lobby won the right to exclude contraception from its health plan, but only on the assumption that employees would receive coverage for contraception through the extension of an already existing accommodation for nonprofit employers.) Instead of imposing a balancing test, as the Religious Freedom Restoration Act does, FADA provides virtually absolute protection to religious traditionalists who refuse to comply with federal civil rights laws that conflict with their views about marriage and sexuality.
Consider some of the implications. First, federal anti-discrimination provisions are sometimes enforced through the tax code, according to an analysis by the Public Rights/Private Conscience Project at Columbia Law School. FADA would exempt religious actors from those requirements. For example, group health plans covered by federal law could restrict health care benefits for LGBTQ or unmarried persons and their dependents. Similarly, companies might adopt discriminatory retirement plans without risking the loss of tax benefits usually associated with such plans.
Moreover, FADA would prohibit the government from denying federal contracts to organizations that discriminate against LGBTQ employees or beneficiaries. And finally, if FADA is read broadly (but reasonably) to prohibit federal officials from imposing any “penalty” on religious organizations that oppose sexual equality, then the law would block federal enforcement of a wide range of civil rights laws in employment, housing, and public accommodations. The Justice Department could not take action against landlords who exclude same-sex couples, hotels that turn such couples away, and restaurants that refuse to serve them.
Even some conservative-leaning commentators have opposed FADA’s protection of for-profit businesses and government employees.
So FADA would undermine civil rights provisions. But even without new legislation, Trump could undo important protections for LGBTQ people, for example by rescinding President Obama’s executive order that prohibits federal contractors from discriminating in employment on the basis of sexual orientation and gender identity.
If, for some reason, the 2014 Obama Executive Order remains in place, the Republican Congress could pass the Russell Amendment. That provision not only allows religious organizations with federal contracts to employ only people of the same religion, as federal civil rights law has done for decades, but it goes further by allowing contractors to discriminate against any employee who does not “conform to the religious tenets of such organization[s].”
Thus, a religious organization could require not only that its employees be members of the faith, but also that they refrain from giving birth out of wedlock in violation of church teachings. Under the current religious accommodation, by contrast, firing a worker because she is pregnant is a form of sex discrimination that is not accommodated.
If Trump gets a chance to replace Justice Kennedy, Roe’s survival is in doubt
On reproductive freedom for women, Trump intends to replace Justice Antonin Scalia with a social conservative who opposes Roe. Thereafter, if Justice Anthony Kennedy were to retire or one of the more liberal justices were to leave the Court, there is no reason to be confident that Roe would survive.
Trump has said that if Roe is overturned as he wishes, the states would decide whether to criminalize abortion. But there are substantial doubts about whether this federalism vision will come to pass, as Professor Michael Dorf has pointed out. Republican lawmakers would be likely to press for federal restrictions on terminating a pregnancy, and it is hard to imagine that a president who has declared himself to be “pro-life” would veto such legislation (though little can be certain with Trump).
In the area of reproductive freedom, too, some changes could be implemented even before Congress acts. Trump’s administration is likely to rescind entirely the contraception mandate that was at issue in Hobby Lobby, since it was enacted by an agency regulation. Even though the agency was acting under authority granted by the Affordable Care Act, it was not required to mandate that all employers who provide health insurance include coverage for contraception. (Of course, the ACA itself is likely to be gutted, if not entirely repealed.)
The Muslim ban
Trump’s promise to exclude Muslim immigrants, or even to target them for vigorous examination simply on the basis of their faith, could be implemented quickly. If effected, an immigration policy that singled out Muslims would violate guarantees located in the Free Exercise and Establishment Clauses of the First Amendment and the Equal Protection Clause of the 14th Amendment. A policy that instead focused on immigrants from countries known to harbor terrorists might be permissible, but even that policy would be invalidated if courts determined that its purpose was to target Muslims — a conclusion that would not be unreasonable, given the policy’s origins.
Finally, Trump’s leadership could embolden states and localities to curtail rights many of us take for granted. Already, we have seen Mississippi enact its own FADA (though it has been challenged in court). North Carolina has shielded judges who object to performing same-sex wedding ceremonies on religious grounds. And conservative “red state” legislatures have moved aggressively to override LGBTQ anti-discrimination laws adopted by progressive “blue” cities. Efforts like these could intensify if states feel encouraged by the national shift in politics, and by the coming shift in law. They will gain some assurance that the Supreme Court will not stand in their way after Trump nominates a Justice, and they will become even more confident if he has the opportunity to name two or more.
Of course, progressive states could continue to provide greater protection for civil rights than the federal government. But efforts to strengthen federal religious freedom rights, as against state law, could limit progressive federalism. Consider Trinity Lutheran v. Pauley, where Missouri seeks to enforce a strong separation of church and state. (The case involves whether Missouri may exclude religious organizations from a state program that resurfaces playgrounds.) The Supreme Court agreed to hear the case but has delayed oral argument, perhaps waiting for a ninth Justice. In cases like that, the Court could seriously limit state variation on important questions of religious freedom.
The constitutional conflicts to come
These are just a few of the legal issues affecting social and economic equality that are likely to arise after inauguration day. Our purpose here is not to predict any specific developments, but instead to support our warning that Trump’s presidency is likely to intensify such conflicts across a range of issues, whatever Trump’s own views and despite the fact that his election provided no mandate to relitigate them.
Before Trump’s election, progressives were looking forward to standing up straight, to leaving their “defensive crouch.” Now they are back on the defensive. No one should be misled by the rhetoric of unity or moderation — egalitarians will have to brace for resistance, both on the federal level and in the states.
Nelson Tebbe is professor of law, Brooklyn Law School and visiting professor of law, Cornell Law School. He is the author of Religious Freedom in an Egalitarian Age; Micah Schwartzman is professor of law, University of Virginia School of Law; Richard Schragger is Perre Bowen Professor, Barron F. Black Research Professor of Law, University of Virginia School of Law. He is the author of City Power: Urban Governance in a Global Age.