Why the Supreme Court Makeup Matters Beyond Abortion

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Legal experts cite religious freedom and free speech among the major issues for evangelicals in a post–Ruth Bader Ginsburg court.

Last week’s death of Ruth Bader Ginsberg represents the third opportunity for President Donald Trump to nominate a Supreme Court justice.

A third of evangelicals by belief cited Supreme Court nominees and abortion stance as reasons for voting for Trump in 2016. Many evangelicals and pro-life Americans have celebrated the possibility that another conservative justice could shift the Court toward overturning Roe v. Wade and reshaping abortion law in the country. Yet the new makeup of the Court will address crucial issues for the church that extend far beyond abortion.

CT asked legal experts how a new Supreme Court appointment replacing Ginsburg stands to affect evangelicals outside of Roe v. Wade. Here are their responses, calling out issues such as religious freedom, racial equality, child protection, and free speech.

Barry P. McDonald, law professor at Pepperdine University:

As it stands, the Supreme Court is controlled by a majority of five solid conservative justices who either have a strong record of supporting religious freedom rights or give every indication that they will develop such a record. If President Trump succeeds in appointing Justice Ginsburg’s successor, that will likely add one more justice to this coalition. While an additional vote is not necessary to maintain this trend, it could prove important to religious freedom proponents in cases where Chief Justice John Roberts might moderate his vote in an attempt to shield the Court as an institution from charges that it has become too political and divisive (or where any conservative justice moderates his or her vote for whatever reason). This is most likely to occur in cases where religious beliefs might conflict with laws prohibiting discrimination …

These are good times for religious liberty in the Supreme Court. Religious liberty is robust and extended even-handedly to both minority religious groups, as is right and just, and to Christians, who are often slighted by contemporary secular culture. Sadly, the Free Exercise Clause remains narrowly interpreted as a doctrine of equal treatment rather than affirmative protection for religious exercise. But the Free Speech Clause has taken up much of the slack and become a bulwark for religious dissenters. Federal statutory protections are successfully invoked for appropriate accommodations to heavy-handed federal regulations and to overturn arbitrary prison rules that impair prisoner religious exercise. And the most encouraging ruling in recent years—affirming that the First Amendment bars government from second-guessing the choice of religious leaders and teachers in the guise of employment discrimination claims—was adopted unanimously by the Supreme Court and extended by a super-majority of seven.

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