Supreme Court cases revive cultural wars as 2020 looms
Watch out what you wish for, Republican Party.
By stealing one Supreme Court seat when the Republican Senate refused to fill a court vacancy throughout the last year of President Barack Obama’s presidency, and as a result of the retirement of Justice Anthony Kennedy, Republicans and President Trump have been able to stack a strong conservative majority on the court.
This means conservatives could be in for a series of victories in the cultural wars. The nation should soon know. Beginning its first full term since Kennedy’s exit, the high court started hearing cases this month. Decisions will be handed down next summer.
That means they will arrive as the 2020 presidential and congressional elections are getting into full swing. If conservatives get the rulings they seek, it will force Republicans to swim against the currents in modern American politics, putting them particularly out of sync with much of the millennial generation. In toss-up states, such “victories” could drag down Republican prospects like ancient artifacts tied around their collective necks.
But in the process much damage would be done, and years would be needed to rebalance the federal courts and stop the decisions that reverse rights for certain groups. Our desire is that enough conservative justices will make the right and fair decisions, not the expected ones.
Let us begin with three consolidated cases involving protections, or lack thereof, for same-sex and transgender individuals. The Obama administration acted on the conclusion that Title VII of the 1964 Civil Rights Act — which bars employers from firing, harassing or otherwise discriminating against an employee “because of (the person’s) sex” — includes the protection of LGBT people.
The nation is largely moving past this cultural battle. Most Americans took in stride, if not outright applauded, the 2015 Obergefell v. Hodges decision — authored by Kennedy — that established a constitutional right to same-sex marriage. Most people want to live and let live.
But apparently not the Trump administration or the cultural conservatives cheering it on. They want the Supremes to rule that the civil rights law provides no such protection, leaving LGBT individuals in many states unprotected from discrimination for who they are (not Connecticut, thankfully, which provides such protections under state law).
The Supreme Court has combined three cases — two involving gay men fired because of their sexual orientation and a transgender woman terminated after her boss learned she was transitioning from male to female. The court should uphold the civil rights protections.
But if the Trump administration position prevails, good luck to Republicans trying to defend to voters in toss-up states a turn-back-the-clock ruling.
Then there is the effort by President Trump to reverse President Barrack Obama’s 2012 executive order protecting so-called Dreamers, the roughly 700,000 young men and women illegally brought to the United States as children, but who have otherwise been law-abiding residents. Obama’s Deferred Action for Childhood Arrivals program has protected these undocumented immigrants as they pursued higher educations and jobs.
Trump is asking the court to rule that Obama exceeded his authority and to effectively nullify DACA and the protections it provides. Trump could, of course, rescind Obama’s executive order with his own, but apparently fears that would be politically unpopular. Most Americans agree with the former president that the Dreamers deserve a chance to pursue their dreams free of the fear of being deported to countries they do not know.
Republicans should have no expectations that by letting the Supreme Court do Trump’s dirty work they will escape a political backlash. They won’t.
In any event, the court should uphold the constitutionality of Obama’s order, which fell within a president’s discretion to set priorities in the enforcement of immigration law.
Finally, there is the case involving a Louisiana law requiring that doctors who perform abortions have admitting privileges at a hospital within 30 miles of the procedure. The plaintiffs argue it is a sham law to make it much more difficult for woman to obtain abortions.
The Louisiana law clearly violates the protections provided by the Roe v. Wade decision. The Supreme Court recognized that just three years ago in striking down much of a similar law in Texas. But with Kennedy gone, could the court be preparing to undermine Roe?
That is a long-sought conservative goal but one which, if achieved, could prove poisonous to Republican prospects in 2020.
The Day editorial board meets regularly with political, business and community leaders and convenes weekly to formulate editorial viewpoints. It is composed of President and Publisher Tim Dwyer, Editorial Page Editor Paul Choiniere, Managing Editor Tim Cotter, Staff Writer Julia Bergman and retired deputy managing editor Lisa McGinley. However, only the publisher and editorial page editor are responsible for developing the editorial opinions. The board operates independently from the Day newsroom.
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