Opinion | One Big Decision Awaits the Supreme Court

The most important decision the Supreme Court’s justices will make in the new term that begins on Monday transcends the questions presented in any of its many cases. It is whether the court will resume or refrain from injecting itself into the country’s culture wars.

Although it may be hard at this point to remember anything about the court’s last term aside from the presidential immunity decision with which it ended, the fact is that the term was largely devoid of culture war material. The justices stopped short of ruling on the merits of the two abortion cases they had initially agreed to decide. And there were no decisions that dealt explicitly with religion, though, of course, nearly every anti-abortion law, such as Idaho’s Defense of Life Act at issue in one of those cases, can be traced to a religious view of when life begins.

That hiatus can’t last. Dozens of religion cases are making their way through the federal and state judicial systems, many filed by plaintiffs with the Supreme Court in mind. That is hardly surprising. The court’s recent decisions, including those in favor of a football coach who commandeered the 50-yard line for public prayer and a web designer whose religion supposedly prevented her from creating wedding sites for same-sex couples, have emboldened those seeking to elevate the role of religion in public life. Further, these individuals and organizations have found ardent allies among judges named to the lower federal courts by President Donald Trump.

Several years ago, I used the phrase “grievance conservatism” to describe Justice Samuel Alito’s odd assertion, made in a 2020 speech to the Federalist Society, that “in certain quarters, religious liberty is fast becoming a disfavored right.” Grievance conservatism, I wrote, is “fueled by a belief that even when it’s winning, it’s losing, and losing unfairly.” Surveying the current landscape, however, I think the phrase is due for a refinement. What we are seeing now is grievance Christianity.

Consider a recent order granted by a federal district judge in North Dakota, Daniel Traynor. He ruled for the Diocese of Bismarck and a Catholic employers’ organization in their challenge to a rule the Biden administration issued under the Pregnant Workers Fairness Act. The 2022 law requires employers to grant “reasonable accommodations” for pregnancy, childbirth and “related medical conditions,” and bars employers from retaliating against an employee who requests an accommodation.

Under an interpretation the Equal Employment Opportunity Commission that became effective this summer, the law also applies to accommodations needed by employees for abortion care and fertility treatments. The plaintiffs noted that it would be a firing offense for one of their employees to even request such an accommodation because it would violate the Catholic faith. By prohibiting them from taking such an action, the plaintiffs argued, the rule violated their rights as employers to practice their religion as they please under the First Amendment’s Free Exercise Clause.

Judge Traynor agreed. “It is a precarious time for people of religious faith in America,” his explanation began. He was just getting started. “It has been described as a post-Christian age,” he continued. “One indication of this dire assessment may be the repeated illegal and unconstitutional administrative actions against one of the founding principles of our country, the free exercise of religion.”

The judge speculated that the government’s real goal “may be to find new ways to infringe on religious believers’ fundamental rights to the exercise of their religions.” But “wisely,” he went on, “our founders provided a separate but equal branch to keep this lawlessness in check.” In a final footnote, he wrote that “unchecked government power creates martyrs,” offering as examples the German theologian Dietrich Bonhoeffer and St. Thomas More.

Judge Traynor, who was serving as assistant city attorney in Devils Lake, N.D., his hometown, while practicing insurance and personal injury law when he was nominated to his lifetime position, may be an extreme variant within the Trump-appointed judiciary, but he is not alone.

Judge James Ho of the United States Court of Appeals for the Fifth Circuit, who referred in an opinion to “the moral tragedy of abortion,” agreed with the appeals court’s decision last year to grant standing to a group of anti-abortion doctors who challenged the Food and Drug Administration’s approval of an abortifacient medication. In a separate concurring opinion, he offered a highly unusual account of how in his view the doctors had suffered an injury entitling them to pursue their complaint in court. True, they had neither performed an abortion nor ever planned to. Their suffering was of a different nature.

“Doctors delight in working with their unborn patients — and experience an aesthetic injury when they are aborted,” Judge Ho wrote. In June, the Supreme Court dismissed the doctors’ case for lack of standing.

There is no guarantee that the Pregnant Workers Fairness Act issue will reach the Supreme Court; a second Trump administration would presumably revoke the Biden administration’s rule. But several religion-driven appeals have recently been filed at the court. One challenges a Maryland school board’s refusal to let parents take their elementary-school-age children out of class to avoid participating in lessons based on “inclusive storybooks” that depict diversity in sexual and gender identity. The United States Court of Appeals for the Fourth Circuit rejected the request by a group of parents to block the school board’s policy. The parents’ petition asserts that in the absence of an opt-out provision, “parents essentially surrender their right to direct the religious upbringing of their children by sending them to public schools.”

Any justices tempted to grant this petition might want to consider the prospect of an awkward contradiction. Just as the parents in this case, Mahmoud v. Taylor, are claiming the right to make an important child-rearing decision, so too are the parents in a case the court will hear in December asking whether the state of Tennessee can prohibit gender-affirming hormonal treatment for trans teenagers whose parents and doctors support the treatment as appropriate. Tennessee, and by extension a number of other Republican-governed states with similar laws, claim the right to override parents’ decisions to seek gender-affirming treatment for their children suffering from gender dysphoria. The United States Court of Appeals for the Sixth Circuit upheld the law. (The Biden administration intervened on the side of the parents. The justices agreed to hear the administration’s appeal, which concerns the question of equal protection, while holding the parents’ separate appeal in abeyance.)

Can the Constitution be on the side of both sets of parents? Or neither? If one and not the other, can the court explain itself any better than it did two years ago when it overturned Roe v. Wade? Whether the justices who were in the majority then are willing to face the facts now, Dobbs v. Jackson Women’s Health Organization has not turned out well, for the court or the country. Culture wars, like real wars, are easier to start than to end. Sometimes they just go on.

Linda Greenhouse, the recipient of a 1998 Pulitzer Prize, reported on the Supreme Court for The Times from 1978 to 2008 and was a contributing Opinion writer from 2009 to 2021.

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