Supreme Court Review

Article Title

What Christianity Loses When Conservative Christians Win at The Supreme Court


In Fulton v. City of Philadelphia1, the Supreme Court extended a recent trend of invalidating the application of antidiscrimination rules that protected LGBTQ people, stating that such applications violated the First Amendment’s Free Exercise Clause. In 2018, the Court ruled for an evangelical baker who said that the application of a state antidiscrimination law to his refusal to bake a cake to celebrate the union of a gay couple violated his free exercise right.2 In these two recent cases, the Court expressed rhetorical support for LGBTQ people’s interest in equal treatment.3 The holding in each case, however, privileged the asserted free exercise right over the competing equality interest. At the same time, the opinions stopped short of overruling Employment Division v. Smith4 and announcing a broad right of religious people and organizations to disobey generally applicable laws. That question was squarely before the Court in Fulton, and three Justices appeared prepared to jettison Smith. But Chief Justice Roberts, Justice Kavanaugh, and Justice Barrett hesitated to go that far, which preserved Smith—at least for the moment. This Essay identifies and analyzes what is at stake for the Supreme Court and for Christianity if the Court continues to craft a constitutional right to discriminate from the claims of a subset of conservative Christians.5

This Essay identifies two important reasons for the Court not to create a broad right of religious people to opt out of general laws. First, the Court’s recent trilogy of religion cases—Fulton, Masterpiece Cakeshop, and Trump v. Hawaii6 —as well as the lower profile pandemic worship cases7 —call into question the Court’s own neutrality on questions of religion. These decisions have impaired the Justices’ ability to claim that they stand outside of politics and religion and possess the “objectivity” required to adjudicate religious liberty claims. Moreover, the enhanced politicization of the Court by the religious right, the Republican Party, and especially former President Donald Trump has boxed the Court in. The Court’s legitimacy in the eyes of the public is at a precarious low, primarily because of recent political developments. This Essay seeks to show how the Court’s free exercise decisions have also contributed to this vulnerability and undercut certain Justices’ vociferous claims that their personal backgrounds and politics are legally irrelevant.

Second, this Essay argues that the Court’s validation of free exercise claims brought by conservative Christians has contributed to the conflation of “Christian” and “evangelical” in the broader culture.8 This trend conceals the diversity and contestation among Christians as to the core of their faith and how it commands Christians to treat stigmatized groups. Thus, Supreme Court decisions in favor of conservative Christians may simultaneously be a win for them but a loss for Christians who hold a profoundly different understanding of their faith. Christianity is a complex, diverse, and constantly evolving religion. Views of Christians on sexuality and gender identity are also complex.9 My goal is to make visible this breadth of perspectives, because one would never know the diversity of the Christian faith from reading Supreme Court opinions. This Essay’s title reflects my personal understanding of Christianity and my desire to complicate the dominant understanding of the faith as aligned with conservative and anti-LGBTQ politics. I want to acknowledge that conservative Christians may see my understanding of the faith—and even the title of this essay— as a harmful distortion of true Christianity. The larger point is to reveal this intra-faith contestation and call for judges and scholars to be more attentive to it.

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