The Religious Right Isn’t Hiding What It’s Doing in the Courts
Religion is everywhere in American legal discourse, but only one side is really comfortable talking about it. Religion is why Dobbs talks about the “unborn human being,” and it’s why religious website designers have now been given a singular opt-out from providing services to their paying customers. It’s why Justice Samuel Alito went to Rome shortly after Dobbs was decided, to fret publicly that “religious liberty is under attack in many places because it is dangerous to those who want to hold complete power.” Religion is why Federalist Society chairman Leonard Leo flies an “Appeal to Heaven” flag. It’s why Speaker Mike Johnson also flies an “Appeal to Heaven” flag. Oh, and it’s also why Martha-Ann Alito flies an “Appeal to Heaven” flag.
And it’s clear that extreme religionists are very, very comfortable talking about extreme religion amongst themselves, even if the rest of us have been slow to recognize and name that pattern in political conversation. Just think about how Mark Meadows and his “Stop the Steal” pen pal, Ginni Thomas, were happily writing about how “Evil always looks like the victor until the King of Kings triumphs,” and how the former president screens a video called “God Made Trump” at his rallies, and how Project 2025 is teeming with theological ideas.
One side is still scrambling to find the language to talk about how religious fundamentalism is playing out in the courts at a time when the separation of church and state is a persistent target of legal assault, and the consequences of one subset of religious beliefs have been imposed on many millions of women in the country. Dahlia Lithwick spoke with Rachel Laser, the president and CEO at Americans United for Separation of Church and State—a nonprofit education and advocacy organization that works in courts, legislatures, and the public square to protect religious freedom—and Katherine Stewart, an author and journalist who’s been covering religious nationalism and the assault on American democracy for over 15 years.Dahlia Lithwick: Define Christian Nationalism because we put a lot under this rubric of white Christian nationalism.Katherine Stewart: Let’s talk about what Christian nationalism is and what it isn’t. Christian nationalism is not a religion—it’s not Christianity. I think of it as a mindset, and also a machine. The mindset is this ideology, the idea of America as essentially a Christian theocracy or a Christian nation whose laws should be based on the Bible, and a very reactionary reading of the Bible. It’s also a political movement that exploits religion in this organized quest for power. As a political movement, it is leadership-driven and it’s organization-driven. It has this deeply networked organizational infrastructure that is really the key to its power. There has been five decades of investment in this infrastructure, and it’s the leaders of this network who are really calling the shots.We can group their organizations into categories. I’ll throw out a few names, but this is by no means comprehensive. There are these right-wing groups like the Family Research Council. You have networking organizations like the Council for National Policy, which gets much of the movement’s leadership cadre on the same page, and brings them together with these very deep-pocketed funders. There are think tanks such as the Heritage Foundation. And there’s a vast right-wing legal advocacy ecosystem that includes groups like the Alliance Defending Freedom, with its $100-plus-million-per-year budget; also, the Becket Fund, Liberty Counsel, First Liberty Institute, Pacific Justice Institute—and they align with the aims of the Federalist Society and related organizations that mobilize enormous sums of money to shape the courts.Another feature of this movement that is often overlooked is the pastor networks like Watchmen on the Wall and Church United, or groups like Faith Wins, that draw together and then mobilize tens of thousands of conservative or conservative-leaning pastors as movement leaders. If you can get the pastors, you can get their congregations. Often pastors are the most trusted voices in their congregations. So they reach out to these pastors, draw them into networks, and give them tools to turn out their congregations to vote for the far-right candidates that they want.And then, of course, there’s this information sphere—or propaganda sphere—of the type that the Alitos, with their “Appeal to Heaven” flag, are clearly tied into. It’s a kind of messaging sphere that outsiders often simply don’t know about, but it’s incredibly self-contained and repeats over and over again a certain core set of messages.
Lithwick: We know a lot about Mike Johnson, we know a lot about Marjorie Taylor Greene, and the ways in which these religious ideas have embedded themselves in the other two branches of government. But it’s harder and murkier to understand how it intersects with the courts.
Rachel Laser: I think we have to start with the Federalist Society, which was founded in 1982. That was around the time when all of the religious-right groups were getting active. They were intentionally shifting their focus from school segregation to abortion. In the late ’80s and early ’90s, we saw this shadow network of legal groups forming. That accompanied what the Federalist Society was doing with the judiciary. The Alliance Defending Freedom was founded in the early ’90s, the Becket Fund in the early ’90s, First Liberty in 1997, Jay Sekulow’s American Center for Law and Justice back in 1990, Liberty Counsel in 1989. So when we were seeing the “moral majority,” and this sort of burgeoning religious extremist movement in the country, they got really smart and decided to focus on the courts, and, boy, are we seeing the rewards of that today.
Stewart: And the movement is extremely strategic. Very patient. I think the key to their success is that long-range thinking and their strategy.
From the very beginning, they set about picking the right cases to bring to the right courts and they created these novel legal building blocks that would sideline, and in some cases obliterate, the establishment clause. They’ve turned civil rights law on its head, and expanded the privileges of religious organizations substantially, including the right to taxpayer money.
Lithwick: Katherine, you wrote a piece in 2022 describing how the movement gets supercharged. You flagged three things that happened after Dobbs: First, the rhetoric of violence among movement leaders appears to have increased significantly from the already alarming levels I had observed in previous years. Second, the theology of dominion—that is the belief that right-thinking Christians have a biblically derived mandate to take control of all aspects of government and society—is now explicitly embraced. And third, the movement’s key strategists were giddy about the legal arsenal that the Supreme Court had laid at their feet as they anticipated the overturning of Roe v. Wade.Stewart: By acknowledging the legitimacy of a state interest in zygotes and blastocysts and fetuses, they really provide a legal system with a set of purely religiously grounded rights that can be used to strip women of all kinds of rights and basically turn our bodies and lives over to federal and state authorities.
But Dobbs is really just the inevitable consequence of this movement’s power. They’re not stopping here. The movement leaders are determined to end all abortion access everywhere. When they say abortion, they also mean some of the most effective and popular forms of birth control, as well as miscarriage care that’s necessary to save women’s lives and health. We’re seeing the consequences of this all over the country, where women are suffering devastating health consequences when they can’t get the miscarriage care that they need.
I’ve been attending right-wing conferences and strategy gatherings for 15 years for my research, and they tell us over and over again what they intend to do, and then they do it, and then they boast about what they’ve done. They’re really not hiding, and their aims are not hard to discern if you’re paying attention.
A Salon article discusses how America's authoritarian radical right is reacting to the conviction of Hunter Biden:
Why Republicans are left disappointed by Hunter Biden's convictionThe Trump campaign reportedly thought it would be a fundraising bonanza for them if Hunter Biden was acquitted
Some Democrats and legal observers wondered about the prosecutorial discretion in bringing the case which is very seldom done in circumstances like this,(as did a couple of the jurors) but across the board, they all respected the verdict and the judicial system. Nobody threatened anyone or vowed to take vengeance on them. Nobody accused the prosecutors, the judge or the jurors of being corrupt. Nobody said the proceedings were rigged.
Well, actually, a lot of people said it was rigged — but they were all Republicans who simply couldn't take "guilty" for an answer. You can understand why. They've been sobbing and whining and rending their garments for weeks now over Donald Trump's guilty verdict in his Manhattan hush-money trial insisting that the Biden Justice Department (DOJ) had implemented a two-tiered system of justice to target Republicans, specifically Trump. And here you have that same DOJ prosecuting the president's only living son over a crime that Republicans insist is a violation of the Second Amendment. In fact, if it had been anyone else, much less the son of a GOP president, the NRA would have been holding vigils outside the courthouse. If Republicans still required logic and consistency to persuade their voters this whole thing would have been terribly confusing for them. Lucky for them, all they need is lies and demagoguery.
That nicely sums up the deep moral rot that America's authoritarian radical right operates with. American authoritarianism is based on lies, demagoguery, bad faith and malice, not logic, consistency or good will.
And finally, there is this little gesture of bad faith and malice from DJT: