Excerpted From: Stephen M. Feldman, White Christian Nationalism Enters the Political Mainstream: Implications for the Roberts Court and Religious Freedom, 53 Seton Hall Law Review 667 (2023) (490 Footnotes) (Full Document)


StephenMFeldmanAn increasing number of legal scholars and political scientists acknowledge that, in most cases, Supreme Court decision-making is based on neither pure law nor pure politics. Rather, the Justices' votes and the Court's decisions arise from an uncertain amalgam of law and politics--a law-politics dynamic, we might say. Politics, though, is not static. The conservative politics of 1990 is not the same as the conservative politics of 2021, including in relation to judicial decision-making. Hence, while a conservative majority has controlled the Court since 1991, when Clarence Thomas replaced Thurgood Marshall, the ramifications of political conservatism for the Court's decision-making have significantly transformed over the years.

This Article traces the evolution of conservatism during the late twentieth and early twenty-first centuries and explores the implications of that history for the Court's recent religious freedom cases, with a focus on Fulton v. City of Philadelphia. To be sure, changes in the Court's personnel affect the politics of the Court's decisions. Moving from a liberal icon, like Marshall, to an ultra-conservative, like Thomas, will inevitably change the politics of Supreme Court adjudication. The same can be said about the more recent transition from Ruth Bader Ginsburg to Amy Coney Barrett. Yet, one should not overlook the importance of less extreme transitions, such as the replacement of the moderately conservative Sandra Day O'Connor with the arch-conservative Samuel Alito. Regardless, given that a conservative bloc has controlled the Court for thirty years, this Article is less concerned with the politics of individual Justices and more concerned with broader trends in conservative politics.

For instance, before 1991, conservatives often advocated for judicial restraint: the Justices, according to this viewpoint, should have been deferring to the democratic process. If the Court was reviewing the constitutionality of a congressional action, to take one example, the Justices should refrain from substituting their own values for those of Congress. After 1991 and the establishment of conservative control of the Court, conservatives quickly lost interest in judicial restraint and instead began advocating for “judicial engagement.” Conservatives, in other words, encouraged the Court to articulate and implement conservative values rather than deferring to the democratic process. Still, though, what values were the Justices to articulate and implement? In short, what did (and does) conservatism mean for the Court?

Part I of this Article explores how political conservatism developed during the late twentieth and early twenty-first centuries. This Part of the Article does not comprehensively explain the complex and multi-faceted history of conservatism during this era. Rather, it draws on historical threads that intertwine in ways that are especially important for understanding the Court. It discusses an intellectual movement, neoliberalism, and a grass-roots movement, white Christian nationalism. Aspects of the latter movement appeared initially on the conservative fringes, but the movement would eventually progress into the mainstream, where it would intersect with neoliberalism in recent Republican politics. Part II begins by analyzing how political conservatism was manifested in the Court's landmark 1990 free exercise decision, Employment Division, Department of Human Resources v. Smith. This Part then explores how changes in political conservatism have affected the Roberts Court's religious freedom cases--with religious freedom (or religious liberty) encompassing issues under both the Establishment and Free Exercise Clauses. Part II then focuses on the Court's recent free exercise decision, Fulton, and how Chief Justice John Roberts's majority opinion and Justice Samuel Alito's concurring opinion (concurring in the judgment) illustrate not only current conservative politics but also the future of free exercise jurisprudence. Part III is a conclusion.

The basic story is as follows: when the Court decided Smith, political conservatism was manifested in a constitutional jurisprudence of judicial restraint, which demanded that courts defer to democracy. The Roberts Court Justices, though, inhabit a different world of conservative politics. Many conservatives today believe Christianity is under siege due (partly) to the nation's growing secularism and religious pluralism. From this perspective, democracy is fraught with danger, so conservatives demand strong judicial protection of religious freedom--especially for white Christians. The Court's recent religious freedom decisions reflect these politics of white Christian grievance and anxiety. In Fulton, Roberts and Alito disagreed about whether the Court needed to overrule Smith explicitly, but despite their disagreement, both of their opinions effectively repudiated Smith and articulated a jurisprudence of free exercise corresponding with current political conservatism.

Of course, the jurisprudence of religious freedom did not first emerge in the late twentieth and early twenty-first centuries. Significantly, for many decades after the Revolution and the framing, the American population was overwhelmingly Protestant. Despite the First Amendment religion clauses, back then the nation was de facto Protestant-Christian, which was manifested in unofficial and official ways. Thus, in 1811, the famed nineteenth-century judge, James Kent, wrote: “[W]e are a christian people, and the morality of the country is deeply ingrafted upon christianity and not upon the doctrines or worship of [non-Christian] imposters.” Similarly, Supreme Court Justice Joseph Story, the leading legal scholar of the antebellum period, emphasized religious freedom yet simultaneously stressed that “it is impossible for those, who believe in the truth of Christianity, as a divine revelation, to doubt, that it is the especial duty of government to foster, and encourage it among all the citizens and subjects.” The First Amendment, according to Story, did not require equal treatment for Christian and non-Christian religions: “The real object of the amendment was not to countenance, much less to advance, Mahometanism, or Judaism, or infidelity, by prostrating Christianity; but to exclude all rivalry among Christian sects, and to prevent any national ecclesiastical establishment.” In fact, the Court rarely decided religious freedom cases before World War II, and in those cases, the Justices largely protected and bolstered de facto Christianity. After World War II, though, the Court responded to the nation's burgeoning religious pluralism by recognizing stronger constitutional protections for religious freedom and equality.

[. . .]

When the Court decided Smith in 1990, the landmark free exercise decision and its majority opinion, written by Justice Scalia, reflected the conservative politics of that era. But conservative politics has changed over the ensuing years. From the perspective of current political conservatism, the Smith Court's deference to democracy and concomitant judicial restraint for free exercise claims seems inappropriate and even dangerous. More particularly, the conservative Justices on the Roberts Court seem worried that Christianity and its hegemonic position in the United States are under threat. The threat, as it is perceived, comes in two forms. First, growing secularism threatens all religion, but especially Christianity. Second, religious pluralism threatens to undermine Christianity's hegemonic place in the nation's traditions. The Court's religious freedom decisions and opinions respond to these concerns, at least in part.

Consequently, the Fulton Court's failure to overrule Smith will probably have minimal long-term significance. Either the Court will continue interpreting the Smith exceptions expansively, as it has done in recent cases, or it will explicitly overrule Smith, as Alito recommended in Fulton. Both paths will lead the Court to apply strict scrutiny--far from the Smith rule of judicial restraint--especially in any case where a white Christian brings a religious freedom claim. In other words, whether or not the conservative Justices overrule Smith, they will continue to interpret the First Amendment religion clauses in accord with current conservative politics. To be sure, the Justices are unlikely to riot at the Capitol, but they are apt to understand and sympathize with the grievance of a white Christian man who is challenged to bake a cake for a gay couple. Likewise, the conservative Justices are unlikely to support the murder or banishment of Jews, people of color, and other non-Christians, but the Justices will find that white Christians have a constitutional right to discriminate against same-sex couples and numerous others. The Justices will be hypersensitive about any perceived slights of or discrimination against Christianity while ensuring that white Christians remain free to impose their beliefs and practices on non-Christians and people of color. In sum, the Justices will interpret the First Amendment to bolster and propagate the structures of white Christian privilege in American society.


Jerry W. Housel/Carl F. Arnold Distinguished Professor of Law and Adjunct Professor of Political Science, University of Wyoming