Letter from Washington: Conservatism’s entente discordiale
America’s religious right questions the deals it has cut
“This decision, and the majority who wrote it, represents the end of something. It represents the end of the conservative legal movement as we know it.” Josh Hawley, the hyperactive Republican junior Senator from Missouri, was one of the many American conservatives disappointed by the news from the Supreme Court this week.
In Bostock v. Clayton County, Georgia, the court ruled that the 1964 Civil Rights Act, which prohibited workplace discrimination on the grounds of race, religion, sex and national origin, also protects gay and transgender employees. The most surprising thing about the decision, and the reason for Hawley’s dismay, was that it had the support of six of the nine justices, and, most importantly, that the lead opinion was written by Neil Gorsuch, a Trump-appointed judge who everyone thought to be an exemplary proponent of the originalist and textualist principles that have defined a generation of conservative judicial thinking. The ruling was also supported by Chief Justice John Roberts, another Republican appointee, generally seen as the swing vote on the court.
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“An alien appears to have occupied the body of Justice Neil Gorsuch,” complained an editorial in the Wall Street Journal which, in 2017, congratulated Trump on picking a judge “well known in legal circles for his sharp prose, as well as for his arguments for religious liberty”.
Bostock is undoubtedly a landmark decision for gay and transgender rights in the United States. A ruling that many on the right see as an instance of judicial overreach could prove to be just as significant a moment for American conservatism.
Hawley, again: “If this case makes anything clear, it is that the bargain that has been offered to religious conservatives for years now is a bad one. It’s time to reject it. The bargain has never been explicitly articulated, but religious conservatives know what it is. The bargain is that you go along with the party, establishment, you support their policies and priorities — or at least keep your mouth shut about it — and, in return, the establishment will put some judges on the bench who supposedly will protect your constitutional rights to freedom of worship, to freedom of exercise…It’s not the time for religious conservatives to shut up. No, we’ve done that for too long. No, it’s time for religious conservatives to stand up and to speak out… Let this be a departure. Let this be a new beginning, let this be the start of something better.”
If the Bostock decision exposes fault lines in American conservatism, it also undermines the logic of a grubbier, short-term pact the religious right made with Donald Trump in 2016
All this is perhaps a little overblown, especially because, as conservative journalist and lawyer David French points out, plenty remains unresolved when it comes to what happens when these rights come into conflict with religious freedom. But outrage is Hawley’s natural register and his declaration of departure is a yet another sign that, though the divorce papers may not have been signed, the marriage between social conservatives and libertarians that held the American right together for decades has been all but over for some time now.
As I have written before, this is a remarkably fluid time in conservative Washington. As old alliances are broken and new ones are formed, religious conservatives should not kid themselves about the strength of their negotiating position. If this is to prove a radicalising moment for the religious right, when they choose to seek more than the liberal, constitutional protections of religious freedom that they have historically relied upon, they also need to contend with public opinion. In response to the question “should gays and lesbians be protected under civil rights laws?”, 82 per cent of Americans say “yes”.
If the Bostock decision exposes fault lines in American conservatism, it also undermines the logic of a grubbier, short-term pact the religious right made with Donald Trump in 2016. An important part of Trump’s success has been his ability to persuade devout Americans that, for all that the brash womaniser on his third wife who is on tape boasting about sexual assault and who does little more with a bible than wave it around may offend their values, he can be relied upon to hold the line on the social issues they care about — first and foremost by nominating conservative judges.
Bostock is only one case, but it is nonetheless a reminder of the limits of pinning your political hopes on judges, and, more pertinently to November, the man who promises you those judges. In another major decision this week, the Supreme Court blocked Trump’s bid to end DACA, the Obama-era scheme to provide protections to undocumented immigrations. “Do you get the impression the Supreme Court doesn’t like me,” asked the President on Twitter.
Trump is losing support in general at the moment, but his decline in popularity among electorally important religious groups is particularly striking. According to the Public Research Religion Institute, Trump’s favourability rating among white evangelicals was 77 per cent in March. By May, it had slumped to 62. Sixty per cent of white Catholics approved of Trump in March. Two months later, just 37 per cent said they do so.
If this week’s news caused some to doubt what they were getting out of their bargain with Trump, it was also a reminder of the deal’s downsides. The Room Where It Happened, the memoir from Trump’s former national security adviser John Bolton, won’t be published until Tuesday, but your correspondent has got his hands on a copy.
The picture Bolton paints is consistent with three and a half years of leaked insider accounts of the chaotic Trump White House and a man neither temperamentally or intellectually up to the job. Bolton claims that Trump thought Finland was part of Russia, that he didn’t know Britain had nuclear weapons, that he asked Xi Jinping for help in his re-election bid and that told the Chinese premier that building concentration camps in Xinjiang was the right thing to do.
Bolton’s intentions may be less than pure. His ideological differences with the President (and a $2 million advance) are doubtless part of his motivation for dishing the dirt, but, by all accounts, Bolton is a serious-minded public servant who takes his own reputation for probity and honesty seriously. Trumpworld will brush him off as an irredeemable hawk, and in several respects he epitomises so much of what is wrong with the Washington elite. But he is a reliable, if tedious and long-winded, witness. In his account of working for Trump, the chronic limitations of the president are plain to see. For those who vote for four more years of the Trump show in November, ignorance is no defence.
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