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Elizabeth Cavell is a constitutional attorney with the Freedom From Religion Foundation. This column was produced for the Progressive Media Project, which is run by The Progressive magazine, and distributed by Tribune News Service.
Long after he leaves office, Donald Trump’s religious right-wing takeover of the federal courts will continue to damage our Constitution.
Over the past four years, the president has stacked the federal courts with ultraconservative judges. According to a new report by the Freedom From Religion Foundation, where I work, these include three Supreme Court appointments (Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett), 53 appellate court appointments and 170 district court appointments, drastically outpacing his predecessors.
In fact, Majority Leader Sen. Mitch McConnell has vowed to continue packing the federal judiciary through the end of the lame-duck 116th congressional session.
This capture of the federal courts is alarming, given the power these courts hold over the interpretation of the Constitution and its impact on our rights. Judges on the federal bench are appointed for life, which may be four or five decades. Their influence often lasts even longer.
In 2016, Trump got 81 percent of the vote from white evangelical Christians; in the 2020 election, it was 75 percent. In return, white evangelical Christians have been rewarded with a federal judiciary willing to codify majoritarian religious privilege while stripping the rights of minorities.
For instance, when Gorsuch was on the 10th U.S. Circuit Court of Appeals, he argued that Ten Commandments and cross displays on public property did not violate the Constitution. Since his confirmation to the Supreme Court in 2017, Gorsuch has consistently voted to expand “religious values.” He has voted to allow crosses on government property, to require taxpayers to fund religious schools, to uphold the Muslim travel ban and to allow religious organizations to fire so-called “ministerial” employees for any reason — even because of their race, sex, religion, age or national origin.
In a 5-4 decision in July, the Supreme Court allowed state-level public health pandemic restrictions on religious services to stand. Just four months later, thanks to newly appointed Barrett, the court flipped on this issue. The Constitution did not change — just the court’s personnel. The court ignored legitimate public health reasons for state and local governments to place restrictions on religious gatherings, instead insisting religion must occupy a place of privilege.
Trump’s lower federal court appointees have also been busy using their power to weaken the Establishment Clause and weaponize “religious liberty” to expand the rights of Christians while limiting the rights of others.
For example, Judges Barbara Lagoa and Britt Grant, both appointed by Trump to the 11th U.S. Circuit Court of Appeals, formed the majority of a three-judge panel that voted in November to stop the enforcement of an ordinance that bans conversion therapy of minors. They gave little weight to the evidence of the harm conversion therapy causes to children, instead prioritizing the “free speech” rights of therapists.
Rulings like these signal that the new ultraconservative federal judiciary is ready to move full steam ahead to weaponize and redefine religious liberty — with dangerous ramifications for our civil rights.
“We are only seeing the early stages of the coming radical changes to how religious liberty is defined in America,” the report warns. “As Trump appointees continue to decide cases in the decades to come, we will continue to see ‘religious liberty’ used to undermine the laws that keep us all safe and protect us from discrimination. We will continue to see courts give their ‘blessings’ to government favoritism of religion.”
We’ll be bearing the consequences of this for quite some time to come.