As President Donald Trump packs the Supreme Court with justices adhering to his fundamentalist brand of social conservatism, the return to an era in American history when questionable religious standards were the law of the land in most states is fast approaching. Women, ethnic minorities, and gays are about to undergo a reversal of the gains made by decisions of the high court since the 1950s.
In less than two years, Trump has taken the opportunity to nominate two staunch social conservatives to the court. Justice Neil Gorsuch merely filled the vacancy created by the sudden death of Antonin Scalia, making no change in the left v. right makeup of the court. Justice Anthony Kennedy's surprising retirement before the midterm elections, however, gave Trump the rare opportunity to mold a truly socially conservative majority on the court, a majority that is likely to last for decades.
Trump had predicted that it might take two or three appointments to begin undoing liberal decisions such as Roe v Wade. With Kennedy gone, he won't have to wait for that third appointment, which he may well get before the end of his first, and probably only, term.
A reversal of the Roe v Wade decision will not outlaw abortion, but it will return the decision-making power on that subject to the states. About half of them, mostly in the South and the rural West where religious fundamentalism is strong, will quickly pass anti-abortion acts that will be upheld by the Trump Court.
It is unlikely that any of the sitting conservative justices or any potential Trump appointees will accept the view on precedent asserted by court nominee Robert Bork during his unsuccessful confirmation hearing. Bork professed that a precedent long established that had been decided by a decisive majority and which had shaped the culture of the country deeply should not easily be overturned. The anti-Roe forces would reverse that decision had it been 9-0 instead of the 7-2 vote that ruled that a woman's right to due process was violated by anti-abortion state laws.
While they wouldn't impose Sharia-style restrictions on driving, or travel without a male companion, state legislation that returns a wife to a position legally less than her husband will surface in those states where fundamentalism is dominant.
The fundamentalist religious wave will simultaneously promote other "reforms" as they attempt to overturn or negate a multitude of court decisions and state legislative actions that they believe are contrary to the religious foundations of this nation. Women's rights, restrictions on religion in public schools, school desegregation, same sex marriage, and homosexual conduct - all will be under attack as the makeup of he Supreme Court changes.
The Nashville Statement, adopted by a conference of evangelicals in 2017, is indicative of the role for women envisioned by the religious right. While they wouldn't impose Sharia-style restrictions on driving, or travel without a male companion, state legislation that returns a wife to a position legally less than her husband will surface in those states where fundamentalism is dominant.
"Returning God to the classroom" will not only have the president's support, it will likely be reflected in Trump Court decisions based on a rejuvenated social conservative outlook on the meaning of the First Amendment's religious liberty clause. The Trump Court will go far beyond the right of a baker, on religions grounds, to refuse service to a same sex couple. Public prayer in the classroom is on its way back as well.
Reversing Brown v Board of Education, which found all nine justices concurring in the school desegregation decision, may be harder to accomplish than overturning Roe. But conservatives have long argued that several members of the unanimous Brown court voted with the majority, even though they were in dissent, because a 5-4 decision would have created havoc. More likely, the Trump Court will attack Brown by chipping away at a strict interpretation of that decision. De facto segregation will be allowed, for example. Or parents who sue because their district moves white kids to a school outside their neighborhood will find a very sympathetic court.
The Supreme Court that in 2015 upheld, 5-4, same sex marriage in Obergefell v Hodges, overturning he Baker decision of 1972 that ruled the right to marry wasn't a federal concern, is now on a course to return to the states control over who can marry. The Trump Court won't adopt the fundamentalist view that marriage is only between one man and one woman, but it will let states make that decision. Southern and Midwestern rural states aren't the only ones that will outlaw same sex marriage if given the chance. Liberal California voted decisively for a ban on same sex marriage in 2008. It may do so again if given the chance.
Once again, some states will criminalize homosexual conduct. In fact, sodomy laws still exist in about one-third of the country. Half a century ago, California was one of the states that punished homosexual conduct. Gay Pride parades may well be banned in many states in response to a positive nod from the Trump Court in the form of decisions curtailing the protection of gays and lesbians.
The upshot is that America under a Trump Court will look much like the America of the mid-nineteenth century. McGuffey Readers may not be back in many schools, but state laws will have returned to that era. Perhaps that was what Trump meant when he pledged to "Make America Great Again."
Ralph E. Shaffer