The Roberts Court giveth, and it taketh away.
Whether you’re more liberal or conservative, that’s how things feel these days in the ever-evolving debate over how to balance laws against discrimination with so-called religious freedom.
Two weeks ago, Chief Justice John Roberts joined the Supreme Court’s four liberal jurists in ruling that workplace discrimination against LGBTQ people was unconstitutional, striking a blow against the argument that such protections violate the employers’ religious rights.
Afterward, President Donald Trump basically threw up his hands, saying, “They’ve ruled, and we live with their decision.” It was probably a reflection of his awareness of public opinion on this issue: In polls taken before the decision came down, wide majorities across gender, race and even political ideology expressed support for extending workplace protections to LGBTQ Americans.
But Wednesday, the court handed down two 7-2 decisions going the other way. In one, it allowed religious employers to fire people on grounds that are otherwise considered discriminatory. In the other, it permitted the Trump administration to let employers with religious or moral objections deny their workers access to birth control coverage.
On these issues, surveys suggest most Americans disagree with the court. In 2018, a Public Religion Research Institute study found that — in addition to expressing widespread support for nondiscrimination protections — a majority of Americans thought that employers should cover birth control as part of their workers’ health care plans, even when those employers were religious hospitals (59% said so), religiously affiliated colleges and universities (54%) and small businesses run by religious individuals (53%).
Robert P. Jones, founder of the research institute, said that with marriage equality and LGBTQ nondiscrimination protections now embraced by a wide majority of Americans and enshrined by the court, religious conservatives are leaning heavily on the argument that faith can be used to justify actions that would otherwise be unconstitutional.
“When you’ve lost the war, the question is how can you win a few battles, and I think that’s where the religious exemptions argument really comes into play,” Jones said. “The question is, how big can the carve-out be for religious exemptions? And even though we have a majority of Americans opposing those, it’s a much more complex argument, and we see much more ambiguity.”
The Supreme Court’s recent decisions on exemptions will affect many lives: Religious organizations employ over 1.7 million people, and the court has now significantly loosened the terms for when those people can be fired. As many as 126,000 women could lose contraceptive coverage as a result of the other decision.
And when it comes to the court, Democrats in particular say they are paying attention. According to a USA Today/Suffolk University poll from April, Democratic voters are slightly more likely to name the Supreme Court as a key voting issue than Republicans and independents: About 44% of Democratic voters called it a crucial voting issue, while 37% of Republican voters and just 29% of independents did.
And the rightward tilt of the court is a prime concern for women’s health organizations like NARAL and Planned Parenthood. Both groups, for instance, refused to support Sen. Susan Collins, R-Maine, in her tough reelection campaign this year, even though she had historically received their backing and continues to support abortion rights. Both organizations cited her votes to confirm Brett Kavanaugh and Neil Gorsuch to the Supreme Court as primary reasons for endorsing Collins’ Democratic opponent, Sara Gideon.
But few Democrats would call themselves single-issue deciders. It is on the right, among evangelicals and other conservatives concerned about the right to claim religious exemptions, that these kinds of Supreme Court decisions appear most central to their vote.
More than anything, those rulings serve as a reminder of the court’s 1973 decision in Roe v. Wade. Overturning that precedent remains a holy grail for conservatives.
“For the evangelical portion of the electorate,” said Ann Selzer, a longtime pollster based in Des Moines, Iowa, “it can be the one thing that decides a vote.”
“We have done numerous focus groups with Republicans, and especially lately, it’s not uncommon for them to volunteer that in voting for President Trump it was ‘all about the babies,’ ” Selzer added, quoting terminology she had heard participants use. “‘You’ve got to save the babies,’ ” she said.
However, for Americans more broadly — and for a vast majority of women specifically — there is little interest in outlawing abortion.
Just 29% of respondents said that they thought overturning Roe v. Wade was a good idea, according to a nationwide CBS News poll last month, while 63% said the decision should be left in place — including majorities of both Protestants and Catholics, though most evangelicals disagreed.
This article originally appeared in The New York Times.
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