Outlook for 2024

Even as advocates and state lawmakers reel from the vicious rhetoric and attacks on civil rights during the 2023 state legislative session, 2024 is shaping up to be even more fractious. Driven by partisan politics during a general election year, lawmakers will continue to politicize civil rights issues in order to distinguish themselves and distract from failed economic policy. Meanwhile, legislative majorities in various contested states seem intent on eroding democracy to maintain electoral imbalances and insulate themselves from democratic accountability.

Moral Panics, Grievance Politics, and Elections

The intense attacks on civil rights and wave of negative legislation is likely to continue in 2024 and even intensify as a result of the 2024 general election. The 2023 legislative session demonstrated just how divided our country has become on matters of civil rights. For example, nearly half the states have now banned or severely restricted abortion and gender affirming care, while the other half has passed laws to protect access to these types of health care as critical civil rights issues. Such substantial divergences of law will produce repercussions that will need to be adjudicated by the courts (see below). And as candidates for federal office nationalize these issues in order to appeal to their constituencies, these divisions will only widen.

It is worth examining for a moment how we arrived at this place. The last few years have been noteworthy in the number and scope of moral panics that have been promoted to sow fear among the populace, ranging from critical race theory in schools, to teachers “making students trans,” pornography in school libraries, immigrants “giving fentanyl to children,” and a whole host of even more outlandish conspiracy theories. Moral panics occur when an imagined threat to society, and especially to children, is propped up as a sinister and existential danger. However, because of our increasingly targeted and insular media, these imaginary harms are given substance, validated, and entrenched. As a result of these media bubbles, Americans very much live in different worlds, with vastly different facts and shared understandings, based on their politics.

As an example, consider the social media presence of former-President Donald Trump, the current frontrunner for the Republican presidential nomination. Many of his statements are utterly incomprehensible to one not acquainted with his slogans, callbacks, and euphemisms. And this self-referential rhetoric is frequently combined with threats against political enemies and the media, promising comeuppance for targets of shared hatred. For example, the former president told his followers, “I am your retribution.” When politicians foster negative emotions and blame-based political strategies in this way in order to get elected, it is often referred to as grievance politics. Notably, this political approach is not one-sided – former-President Trump’s opposition certainly makes use of the hatred their constituents hold for him to promote turnout and fundraising.

However, this combination of moral panic culture, media segregation, and grievance politics disproportionately affects the political right, and we are now seeing the state legislative fruits of these poisonous seeds. In 2023, state legislatures introduced more bills attacking civil rights than ever before, at least twice as many as 2022, the previous record year. And many, if not most, of these bills concerned niche issues responsive to narrow online constituencies, efforts to relitigate social issues in the public or the courts, and bills that pursue obscure vendettas. Examples include legislation to ban trans students from sports (even in states with so few trans students, it’s unclear whether the law applies to anyone), to introduce chaplains into public schools (which neither schools nor the public called for), and to prevent teachers from secretly “making students trans” (a conspiracy theory promoted by right wing activists). Sadly, in this legislative environment, concerns about necessity, impact, and even constitutionality are tossed aside. None of this is new to American politics, but the scale is unprecedented, and we have every reason to believe it will worsen during the 2024 state legislative session as a result of the general election.

More, and More Extreme, Attacks on Civil Rights

Not only did we see more attacks on civil rights in the 2023 legislative session than in previous years, these attacks were more extreme than in previous years, and it is likely that trend will continue in 2024. In 2022, despite the fact that many states passed legislation to ban trans athletes from participating in school athletics, Alabama was an outlier in that it also banned, and even criminalized, gender affirming care. In 2023, following this example, 19 states passed laws banning care for trans youth. State lawmakers frequently look for the “next thing” in order to appeal to their base constituency. A bill that pushes the limits on an issue one year might, absent significant pushback or repercussions, become model legislation the next year. And here, where there is a nationwide campaign to stoke hatred against certain disfavored groups, legislative attacks on civil rights can become progressively more cruel and dangerous.

There are numerous health care issues where we are likely to see right wing state lawmakers push extreme legislation in 2024. For example, now that nearly half of states have banned abortion and gender affirming care for young people, lawmakers may consider bills that allow them to target anyone who pays for or supports these procedures or criminalize those who obtain or provide these procedures out of state. They may extend prohibitions to care for trans adults, prohibit any professional training or education on disfavored procedures, or even encourage conversion therapy against trans youth. In some states that have banned abortion, lawmakers are increasingly shifting funding from maternal wellness and health care to so-called “crisis pregnancy centers” (CPCs), religious nonprofit organizations that rely on deception and shame to prevent abortions. Lastly, while so far only a handful of states have adopted broad denial of care laws, 2024 may be the year that we see many more states take up and pass this dangerous legislation.

So-called “parental rights” bills are another area where there has been significant legal and strategic development year over year. What began with bills targeting “critical race theory” has metastasized into legislation that often includes provisions to ban books, forcibly out LGBTQ students, ban discussion of LGBTQ people and history, ban schools from providing mental health care, prevent administration of national surveys to identify disparities, allow parents with religious objections to opt students out of any class, give special legal protections for “parental rights,” and more. These bills are so vague and expansive, we are likely to see lawmakers pick up ideas from other states and pass ever more censorious and punitive measures in 2024.

The legislative focus on “parental rights” is part of a broader effort to undermine secular public education. In 2023, states passed a wave of universal school voucher laws with unlimited eligibility, with bills passing in Arkansas, Florida, Indiana, Iowa, Ohio, Oklahoma, and Utah. We’re already seeing the impact of these terrible policies, as they have generated massive cost overruns and fraud in states like Florida and Arizona. These bills are part of a coordinated and well-funded national effort to undermine public education in favor of private, religious education, and states with pre-existing voucher programs are likely to be targets for similar legislation in 2024.

Finally, we are likely to see Christian nationalist state lawmakers take up bills that push religion into public schools, including noteworthy bills that were considered or passed by other states during the 2023 session. For example, other states may consider Texas’s egregious school chaplain law, which allows districts to replace school counselors with unregulated and unqualified chaplains. Texas considered but did not pass other extreme, religiously coercive bills, including a mandate to post Ten Commandments displays in classrooms and a bill specifically permitting students and teachers to engage in daily prayer, while shielding against liability. After the U.S. Supreme Court’s decision in Kennedy v. Bremerton School District, it has become more difficult to challenge unconstitutional religious coercion in public schools, but it is unclear at this stage how Christian nationalists will advance legislation to capitalize on this victory.

Partner Perspective: State Legislative Threats to Secular Public Education

Uncertainty, Inconsistency, and the Rule of Law

In modern America, the U.S. Supreme Court has a perennial influence on state legislative activities. Changes to the balance of the Court can trigger states to pass laws that challenge longstanding decisions, and major decisions from previous sessions can shape state legislative responses across the country. Although there were significant decisions that affect civil rights and religious equality in the Court’s 2023 term, it is unclear at this point how they will impact state legislation. For example, in the 303 Creative LLC v. Elenis case, the Court ruled that a website designer could not be required to comply with a state nondiscrimination law that compels her to engage in artistic design and with which she disagrees. We may see states respond to this decision by introducing carve-outs from nondiscrimination laws that protect expressive activities, perhaps with special consideration for those based on religion, but it seems unlikely that would be a priority in states that have robust nondiscrimination laws.

Despite its limited likely impact on state legislatures, the 303 Creative LLC decision is emblematic of the U.S. Supreme Court’s recent jurisprudence in another way: it leaves unresolved many questions with which the lower courts will need to grapple, without much guidance. For example, where is the line between speech and conduct when it comes to public accommodations? There have been so many massive doctrinal shifts over the past five years, fundamentally reshaping whole areas of the law, that lower courts are left adrift in trying to reconcile conflicting precedent and poorly defined new tests. One especially noteworthy example is the Court’s new reliance on “historical practices and understandings” to define civil rights in areas ranging from abortion access, to gun safety, and church-state separation. As several district court judges have pointed out, they are not historians -- this test makes it both difficult and expensive to bring cases to protect civil rights, and it allows hostile courts to cherry pick from history to arrive at desired outcomes. Especially at a time when so many are turning to the courts to protect their basic civil rights, which are under attack by Christian nationalists and their lawmaker allies, these vague tests and clearly ideologically biased courts create uncertainty and risk.

Especially relevant in an election year, for example, are the many challenges to state laws that gerrymander state legislative districts or interfere in elections in ways that are not permitted under federal law. The U.S. Supreme Court has issued inconsistent guidance, saying both that federal courts may not evaluate constitutional challenges to gerrymandering, but also that if these issues are addressed by state courts, federal courts may intervene to halt such decisions if it suits them. Another example of conflicting decisions impacting civil rights is the myriad of cases brought on behalf of trans youth to challenge school athletics bans and health care bans. The legal precedent in this area is strong, and nearly every district court to have considered the issue has found these laws to be unconstitutional. However, a few of the most ideologically imbalanced circuit courts have begun to reverse these decisions, even as they fail to contend with the clear constitutional issues highlighted in each district court opinion. Lastly, as discussed above, because the Kennedy v. Bremerton School District decision overturned a clear rule to protect church-state separation in favor of a costly and vague historical test, it has become much more difficult to challenge state laws and policies that promote religion in school, even when they become coercive.