“My motto for the rest of the year is leave no vacancy behind,” Senate Majority Leader Mitch McConnell told conservative radio talk show host Hugh Hewitt in late March.
The Kentucky Republican was talking about filling vacant federal judgeships, of course. McConnell reconvened the U.S. Senate in May—while Washington, D.C., was still under shelter-at-home orders and daily death tolls from COVID-19 were still shockingly high—so he could confirm more judges.
It’s all about the judges.
President Donald Trump has appointed nearly one of every four federal judges now sitting. As of this writing, he’s appointed 193, including two U.S. Supreme Court justices: Neil Gorsuch, who obtained the seat after McConnell blocked President Barack Obama’s nominee Merrick Garland, and Brett Kavanaugh. Trump attained this stunning number in such a short time through McConnell’s chicanery. There were already over 100 judicial vacancies to fill when Trump arrived, largely because McConnell obstructed Obama’s picks in 2015 and 2016.
America’s culture wars are fought on every field of battle where government decisions are made: Congress, executive branch offices, statehouses, regulatory bodies, and public schools. Ultimately, however, the victories are decided in the courts. Win the courts, and you control the most consequential public policy decisions of our age, from who can marry whom to whether the president is answerable to Congress.
No matter what Trump does as president, no matter his personal moral turpitude, he will be enthusiastically supported by huge margins of evangelicals and Christian fundamentalists. He is giving them their holy grail: the courts.
Meanwhile people like us—concerned about the separation of church and state, the rights of nonbelievers, and keeping the government from adopting intolerant religious dogma as public policy—are about to be legally pummeled.
The Christian Right has been preparing for this day for decades, with one group in particular situated at the fulcrum of conservative Christianity and the law. This malign force wrapped in sanctimony is the Alliance Defending Freedom (ADF), a Christian-Right legal organization laser-focused on using the courts to its own “God-given” purposes. Combine its more than $50 million in annual revenues and its self-proclaimed 3,400 allied attorneys with the newly minted Trump judiciary, and the result is Christian nationalism on the march.
ADF says it provides “legal help with a gospel mission.” But it has a rather crimped view of faith. If you want to be affiliated with this group, you have to agree that life begins at conception, that “God designed marriage” for one man and one woman for life with no sexual intimacy outside that union, and that “God creates each person with an immutable biological sex—male or female.”
I wonder what they think of God’s most favored polygamists such as Abraham, Jacob, and Solomon?
ADF was founded in 1994 with the help of some of the biggest names in the Christian Right. Here are some you’ve probably heard of: James Dobson of Focus on the Family; Bill Bright, who founded Campus Crusade for Christ International; D. James Kennedy, who was at the helm of Coral Ridge Ministries; and Donald Wildmon, president of the American Family Association.
The money that flows to ADF also comes from names you might know, including the Richard and Helen DeVos Foundation. The late Richard DeVos cofounded Amway and was father-in-law to Betsy DeVos, Trump’s education secretary. Betsy DeVos’s parents’ foundation, the Edgar and Elsa Prince Foundation, is another notable funder.
Katherine Stewart, in her must-read book The Power Worshippers: Inside the Dangerous Rise of Religious Nationalism, lays all this out and says that ADF is “a key actor behind nearly every major case in the United States that is attempting to expand special privileges for conservative Christians.”
She notes the group’s fingerprints on such U.S. Supreme Court cases as Hobby Lobby, which gave family-owned corporations religious freedom rights to deny employees contraceptive coverage under Obamacare; Trinity Lutheran, which opened the door for churches to demand government funding on an equal footing with secular organizations; and Masterpiece Cakeshop, in which the high court overturned a discrimination finding against a religious baker by the Colorado Civil Rights Commission after he refused to sell a wedding cake to a same-sex couple. The court said the baker had been the victim of religious hostility by the Commission.
These cases are just the beginning of what will be a tsunami of litigation allowing religious groups to step up to the public-funding trough, carving out special privileges for religious people, organizations, and corporations.
The idea is for the courts to embrace the following paradigms, and they are well on their way to doing so:
- Government cannot discriminate against religious institutions when it provides funding for programs generally open to other businesses or nonprofits. (Note the way religious institutions lined up for hundreds of millions of dollars in Paycheck Protection Program funds.)
- Unlike these other businesses and nonprofits that have to be transparent when receiving government funds, religious institutions should be held to lower accountability requirements so the government doesn’t entangle itself in the internal affairs of religion. (Religions are exempt from having to file Form 990 in lieu of tax returns like other nonprofits, leaving their revenues and funding sources opaque.)
- Absent a compelling governmental interest, the government cannot require religious people, organizations, or businesses to follow nondiscrimination laws or other laws of general applicability that conflict with sincerely held religious beliefs—beliefs they define for themselves. (Religions insist that they are exempt from a raft of general laws, from discrimination laws to zoning.)
This formulation envisions a parallel set of institutions—religious congregations, religious schools, religious social service organizations, etc.—in receipt of government funding but largely beyond the government’s scrutiny and laws.
It is a recipe for taxpayer-funded religious schools—Christian schools—that can discriminate in whom they hire, who can attend, and what curriculum gets taught. Having their antiscience, pro-religion schools funded by taxpayers is the Christian Right’s second holy grail, after cornering the courts.
While this is all roundly depressing, we should also look at it from a detached and analytical perspective and draw an important lesson from ADF and its funders.
Think about it. In recent years they watched same-sex marriage become legal in all fifty states. They watched Obamacare give millions of women free contraceptives as part of employer-provided health coverage. They watched transgender rights gain broad acceptance. They watched American society grow increasingly secular and young people fall away from religion in unprecedented numbers.
Yet despite loss after loss, they kept at it. Now, that $50-million-a-year investment is paying off. McConnell and Trump helped tilt the courts in their favor and put their dream of Christian nationalism within reach. They will reap a legal harvest for quite a while to come.
And we are the ones who will have to steel ourselves to coming losses without giving up. This is a long game that we can (and will) win. But only if our supporters keep the, er, faith.