Hugh Hewitt: Evangelicals should thank Trump for protecting their religious liberty

Evangelicals who minimize the importance of President Donald Trump’s judicial appointments betray a naivete about the perils to religious liberty in the United States, perils that have been growing over the past decade.

Many people, outside of the relatively small group of constitutional law professors and Supreme Court and appeals courts practitioners, may not grasp the sheer number of cases on the religious clauses of the First Amendment that have reached the high court in recent years. Six of these cases illustrate the stakes. (There are scores more religious liberty cases that are resolved in federal district and circuit courts, as clashes between the world of faith and the vast administrative state in the United States accelerate.)

In 2014, in Burwell v. Hobby Lobby Stores, the Supreme Court decided, by a 5-to-4 vote, that the Affordable Care Act’s mandate that for-profit corporations supply their employees with contraceptives – even forms of contraception violating the corporations’ owners’ beliefs – was barred by the Religious Freedom Restoration Act. Had the court majority gone the other way, there is no doubt that Hobby Lobby, a company employing 32,000, would have closed. The Green family, who owns that company, was not going to “bend the knee” to the demands of the government had they lost. Justices Anthony Kennedy and Antonin Scalia sided with the company’s religious liberty interests.

Also in 2014, in the case Town of Greece v. Galloway, the court – again by a vote of 5 to 4 and again with Kennedy and Scalia in the majority – held that a town’s practice of opening its town board meetings with a prayer offered by members of the clergy did not violate the Constitution’s establishment clause because that practice was consistent with the tradition long followed by Congress and state legislatures. Greece did not discriminate against minority faiths in determining who offered prayers, and the prayers did not coerce participation by anyone. Secular absolutists wanted this and similar practices in other jurisdictions banned.

The court in 2017, by a vote of 7 to 2, ruled in Trinity Lutheran Church of Columbia Inc. v. Comer that excluding religious organizations from aid programs run by governments violates the free exercise clause of the First Amendment. That two members of the court thought religious preschools were banned from state grants to upgrade playgrounds for safety purposes illustrates just how extreme is the anti-religion animus among some within the judiciary.

The court’s 2018 ruling in Masterpiece Cakeshop v. Colorado Civil Rights Commission upheld the right of a baker to refuse to make a cake for a same-sex wedding, but only because the Colorado Civil Rights Commission seemed hostile toward religion. Don’t be misled by the 7-to-2 vote. It was a very close-run decision. Meanwhile, the persecution of the baker by Colorado’s extreme anti-faith militants has continued.

The court, also in 2018 and again by a 5-to-4 vote, held in National Institute of Family Life Advocates v. Becerra that a California law violated the First Amendment because it required “pro-life” pregnancy centers to provide notices about the availability of abortion services. These centers are almost always run by faith-based groups. The California law was a “jam down” statute by the anti-pro-life forces dominant in the California Legislature, which has moved further to the left in recent years.

The Supreme Court held the line against absurd interpretations of the Constitution’s bar on establishment of religion in 2019’s American Legion v. American Humanist Association. Although the lower court had ordered the demolition of a large cross that had stood in a public park in Maryland for a century, the court – voting 7 to 2 – held that the display and maintenance of such a large memorial by a local government did not violate the establishment clause. Keep in mind the lower court had held exactly the opposite.

Battles over religious liberty continue. The court has recently agreed to review decisions by the U.S. Court of Appeals for the 9th Circuit crucial to the future of religious education. The high court’s decision should arrive by June. In this proceeding, the decisions of two Catholic schools – St. James School in Torrance, California, and Our Lady of Guadalupe School in Hermosa Beach, California – concerning two teachers and whether they could continue to teach at these schools were upheld by trial courts but reversed by two different panels of the 9th Circuit, thought the most liberal circuit court in the country. This is a major free-exercise case that will affect tens of thousands of faith-based schools.

Critics of the president who play down the importance of Trump’s judicial appointments make an enormous mistake. For those whose faith is crucial to their lives, “Trump judges” make all the difference in the world.