Balkinization  

Friday, December 23, 2016

Are the "Culture Wars" Over?

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Richard Schragger, Micah Schwartzman, and Nelson Tebbe

We are less sanguine than Mark Tushnet that the "culture wars" are over and progressives have won, as we argue in a recent piece in Vox. Certainly, Mark is right that there has been a decided cultural shift in the U.S. regarding same-sex marriage. But this achievement is politically contingent. Depending on the time horizon, LGBT rights may still be in play, as are reproductive rights, religious accommodations, and the scope of religious disestablishment.

Consider the long term first. Mark acknowledges that if Trump has the opportunity to make two (or more) appointments to the Supreme Court, affirmative action and reproductive rights could be on the table. But the same could be said for same-sex marriage—there’s no guarantee that Obergefell would survive a Trump Court. In fact, many other aspects of the so-called “culture wars” could be unsettled if that happens: Employment Division v. Smith and school prayer, for starters. Now maybe Mark is right that political support for same-sex marriage and other rights is sufficient to ensure that any such legal reversals are temporary. But we are less confident about making predictions that stretch that far into the political future.

A Trump Court would also uphold the legislative changes that are coming in the near term—and we are sure to see a continuation of “culture war” conflict around these laws. The religious freedom legislation being contemplated by this Congress implicates basic civil rights. Most immediately, Senators Ted Cruz and Mike Lee have pledged to reintroduce the First Amendment Defense Act. Read broadly—and some sympathetic courts will read it broadly, especially after President Trump has made further appointments to them—the legislation would permit religious organizations, including for-profit companies, to discriminate in myriad ways. A radical version of FADA has already been enacted in Mississippi. Mark’s prediction that FADAs will face legal challenges has proven correct in that case—a federal trial court struck down the Mississippi FADA in Barber v. Bryant. Yet that decision is now on appeal in the Fifth Circuit, where it is far from certain to be affirmed. Beyond FADA, moreover, the Russell Amendment will likely return, as we point out in our Vox piece.

Even without two appointments, the federal FADA may well be upheld. Consider that conservatives have won all of the major church-state decisions in the last decade, outside same-sex marriage: Hosanna-Tabor, Hobby-Lobby, Town of Greece—and before that, ACSTO v. Winn and Hein v. Freedom from Religion Foundation, which both significantly restricted standing to raise Establishment Clause challenges. (Holt v. Hobbs and O Centro were not politically charged, because they protected members of  religious minorities and did not involve harms to third parties.) In these cases, the Court expanded free exercise or narrowed disestablishment, including by closing down avenues for objecting to state funding of the religious mission.

Even if all the achievements of the LGBT and women’s equality movements remain in place, moreover, there are significant opportunity costs. Remember that LGBT persons are still not explicitly protected under federal civil rights laws concerning employment, housing, or public accommodations. How long will Americans have to wait for those kinds of basic guarantees? If the culture wars were over and progressives had won, we would expect a quick resolution of that unfinished business. Instead, civil rights law will move in the opposite direction—the EEOC’s interpretation of existing laws to protect LGBT people will be quickly reversed, presumably, as will President Obama’s 2014 Executive Order protecting LGBT workers against employment discrimination by federal contractors. We could add many more examples of expected reversals on civil rights questions.

Mark may be reading the cultural mood of the country correctly, at least in the long term—though Trump's election illustrates the contingency of all aspects of the progressive project. From our perspective, it looks like Americans will be battling the “culture wars” for some time to come. In the short term, and in the long term if the Court’s composition changes dramatically, America could look more like the religious nation that some of Trump’s advisors and supporters envision. 

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