In November of 1993, members of the U.S. Congress did something that today seems almost inconceivable: they reached near-unanimous agreement on a pressing political question—and not just any question, but a fundamental question concerning the proper parameters of the separation of church and state. The Religious Freedom Restoration Act garnered a unanimous vote in the House and a vote of 97-3 in the Senate. The act, known as the RFRA, was created by lawmakers to undo an extremely unpopular decision handed down by the U.S. Supreme Court in 1990, which had dramatically reduced the scope of the Constitution’s free exercise clause. As its title states, the widely-supported RFRA was designed to “restore” the religious freedom that had existed before the Court’s controversial decision.
In the intervening years, however, things have gotten complicated. As it turns out, this complexity has worked to the distinct advantage of Donald Trump.
Why So Complicated?
THE POLITICAL CONSENSUS THAT gave rise to the RFRA began to break down in 1997, when the Court overturned a key portion of this act, leaving it to states to decide whether or not to create their own religious freedom restoration laws (the original RFRA still applies to the federal government). Since 1993, nearly half of U.S. states have implemented their own individualized “mini-RFRAs.” This state-centered approach has created a “patchwork” system in which citizens are afforded more or less robust protection depending on the state they inhabit.
But that’s just the beginning of the complexity. While both the original federal RFRA and most state RFRAs focus on protecting religious beliefs and actions from government infringement, some states, such as Indiana and Arkansas, have proposed RFRAs aimed at staking out a right to be protected from infringements by fellow citizens. These are two very different situations. After all, state and federal governments are powerful entities, and many people see the value in creating strong protections for individuals and groups whose religious lives come into conflict with such entities. It is much more questionable whether the principle of religious free exercise should be understood, for example, to entitle small business owners such as the now-famous owner of Masterpiece Cakeshop to be protected from their would-be customers—especially when such customers are themselves members of historically oppressed minority groups, such as LGBT people.
In recent years, this “patchwork” free exercise landscape has come into conflict with another patchwork realm of law: that of LGBT nondiscrimination protections. Today, there are no consistent nondiscrimination protections for LGBT people at the federal level, so, not unlike citizens with free exercise complaints, LGBT Americans are also afforded stronger or weaker protection depending on the state they happen to inhabit.
What Does the Constitution Say?
SURELY, THE U.S. CONSTITUTION must have something to say about this? After all, its First Amendment specifically singles out the “free exercise” of religion for protection. And, though the Constitution is somewhat less explicit on the matter of LGBT rights, its Fourteenth Amendment guarantees that no citizen shall be deprived of “life, liberty, or property, without the due process of law,” and these words have been understood for years to safeguard citizens’ right to make “the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy.”
The problem is that the Constitution gives only the most schematic guidance on the question of what is to be done when these First and Fourteenth Amendment rights come into conflict with each other. For example, does the “exercise” of religion entail the right to refuse to provide particular services to LGBT people, or does it merely entail the right to harbor and articulate certain beliefs about LGBT people? Or, conversely, is the right to make “intimate and personal choices” an individualized right to be left alone by the government, or does it also carve out LGBT people as a protected class of citizens whose rights to equitable treatment supersede the longstanding religious objections of other citizens? The Constitution’s sparse text does not definitively address these questions, and so they have fallen to the interpretive powers of the U.S. Supreme Court. However, the nation’s highest court is also deeply divided on these matters and has thus failed to provide a conclusive framework for resolving such points of constitutional tension.
These constitutional ambiguities have left us with a highly inconsistent legal system. Moreover, these ambiguities have generated palpable confusion among Americans about even the most basic mechanisms that currently exist to settle conflicts between religious freedom and LGBT rights. As recent polling data from the Public Religion Research Institute shows, Americans today are more united in their lack of knowledge about the current state of free exercise and LGBT protections than they are in their opinions about what should be done to actually ensure such protections.
Advantage to Trump
IN A RECENT PUBLICATION, I argued that there is a strong connection between these contemporary legal ambiguities and Trump’s popularity among conservative Christians. Trump’s election to the presidency was made possible in part by a remarkable margin of victory among white evangelicals and Catholics, many of whom were assured by politicians and religious leaders in the build-up to the 2016 election that a vote for Hillary Clinton would basically amount to the eradication of the religious freedom of Christians. Alarmist claims like this are much easier to make when the majority of all Americans—Democrats and Republicans, judges and laypeople—are deeply uncertain about the basic parameters of the free exercise clause.
But Trump’s advantage doesn’t stop there. As Jeffrey Toobin has recently made clear, the legal ambiguities of the past few decades have provided an opening for conservative Christians to harness the logic of the free exercise clause to portray themselves as an embattled population in need of the same constitutional protections afforded to religious minorities. This legalized language of embattled religious freedom feeds almost effortlessly into a broader narrative of oppression in which, as the story goes, a liberal-leaning federal government is systematically foreclosing upon the rights and identities of a significant population of Americans. Franklin Graham recently expressed precisely this type of complaint when he asserted to a gathering of Southern Baptist leaders, “the progressive left has ascended into a national political power that presents a clear and present danger to our basic religious liberties and freedoms. They despise anyone who is pro-life and mock all who hold to a Biblical worldview.”
Such unequivocal rhetoric serves to transform workaday disputes between Republicans and Democrats into a high-stakes battle between, on one side, Christians who simply want to live out their beliefs and, on the other side, disdainful “liberals” determined to use their political power to eradicate traditional values and reshape American society. Under such stark circumstances, voting for a Democratic candidate is almost unthinkable—the equivalent of a vote against both the religious freedom of Christians and the very moral foundations of the United States. Far from a simple disagreement over basic constitutional principles, the struggle to secure the free exercise rights of particular Christians has become a central point of focus in what conservative commentator Peter Wehner describes as “an existential struggle against a wicked enemy.”
Within this confusing and contentious context, each new court case involving the separation of church and state becomes both a reminder of the up-for-grabs nature of this debate and an exemplar of a zero-sum battle unfolding between religious Americans and their liberal foils. The stage is set for anxious Christians to gravitate toward political leaders who exhibit the will and the clout to forcefully pull liberals up short. A president such as Trump, ever eager to enter into confrontation with both liberals and equivocating conservatives, achieves and retains his legitimacy not by virtue of Christian identity or unimpeachable behavior, but by virtue of his willingness to validate the grievances of conservative Christians while delivering clear triumphs on the uncertain terrain of today’s religious freedom landscape.
Crisis and Clarification
ONE OF THE CLEAREST victories that Trump has delivered to conservative Christians is his appointment of two Supreme Court justices. This is a legacy that will endure far beyond Trump’s time in office, and will outlast whatever legal imbroglios he ends up importing into the office of the U.S. presidency. At this point, Trump’s Court appointees have hardly begun to weigh in on the question of how religious free exercise and LGBT rights are to be balanced, though we already see some compelling signs that Neil Gorsuch and Brett Kavanaugh harbor a strong commitment to interpreting both of the First Amendment’s religion clauses in a manner that will be friendly to conservative Christians.
For example, in his very first establishment clause decision as a Court member, Gorsuch agreed with the majority’s decision to allow taxpayer dollars to be used to renovate a church-owned playground, and then penned a separate opinion stressing his commitment to an even more generous approach to free exercise than the Court had put forth in its ruling. Gorsuch made a similar move in the Court’s most recent establishment clause case, agreeing with the majority’s decision to allow a large cross to remain on public property while simultaneously admonishing the Court for having been so solicitous of those offended by the cross in the first place. And, while Kavanaugh didn’t go quite as far as Gorsuch in his own opinion in this cross case, he did take the opportunity in this first church-state case of his tenure on the Court to insist that there is nothing coercive about religious memorials on public land, no matter how old or new such displays are. Taken together, such opinions point toward what Robert Tuttle and Ira Lupu describe as “a majoritarian perspective about history, tradition, and inclusivity” that will work to the advantage of conservative Christians.
Of course, any Republican president would likely have appointed justices of the sort that Trump has appointed. So, while the composition of the Supreme Court is unquestionably a key factor in Trump’s ongoing support from white conservative Christians, it is impossible to ignore the roles that race and gender, and even a generalized, combative brand of nostalgia, have also played in Trump’s popularity. Where the specific issue of religious freedom is concerned, what we need to appreciate is that Trump has done more than appoint Christian-friendly judges; he has repeatedly shown himself willing, in Wehner’s words, to “bring a gun to a cultural knife fight.” In a context of high-stakes legal uncertainty concerning the parameters and limits of the Constitution’s religion clauses, Trump’s ruthlessness and disdain for compromise have proven attractive even to people who have every reason to recoil from him on other grounds.
In a recent analysis of the Trump administration’s evolving foreign policy agenda, Mattathias Schwartz raised a point that has been of deep and ongoing interest to scholars of religion in recent years: “Somewhat like human rights and economic development, religious freedom is a rhetorical Swiss Army knife—a versatile generality, half tool and half weapon.” Today’s U.S. church-state landscape presents a striking example of the multifaceted and highly-charged nature of religious freedom. For many conservative Christians, this term refers to more than just a line in the Constitution or a contested legal principle; it is nothing less than a fulcrum in the battle to salvage the basic rights of their increasingly-embattled communities.
More broadly, though, the fight for religious freedom represents a struggle to correct the mistaken trajectory that America has been on for years—a trajectory that, in the minds of many Christians, has resulted in the erosion of the “first freedom” enshrined in the Bill of Rights. As the parameters of the free exercise clause have become increasingly confusing, the demand has risen for a “Flight 93 president” who, like the passengers on that infamous hijacked plane, will forcefully acknowledge and rebel against a dangerous threat menacing the nation. Trump, who has repeatedly validated conservative Christians’ sense of acute alarm, and who has already taken concrete measures to resolve the ambiguities of the Constitution in their favor, appears to many of his admirers to be precisely such a president.
Jenna Reinbold is a PRRI Public Fellow and an Associate Professor of Religion at Colgate University.