Special To The Washington Post
Evangelicals who minimize the importance of President Donald Trumpâ€™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 Actâ€™s mandate that for-profit corporations supply their employees with contraceptives - even forms of contraception violating the corporationsâ€™ ownersâ€™ 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 â€śbend the kneeâ€ť to the demands of the government had they lost. Justices Anthony Kennedy and Antonin Scalia sided with the companyâ€™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 townâ€™s practice of opening its town board meetings with a prayer offered by members of the clergy did not violate the Constitutionâ€™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 courtâ€™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. Donâ€™t be misled by the 7-to-2 vote. It was a very close-run decision. Meanwhile, the persecution of the baker by Coloradoâ€™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 â€śpro-lifeâ€ť 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 â€śjam downâ€ť statute by the anti-pro-life forces dominant in the California legislature, which has moved further to the left recently.
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 courtâ€™s decision should arrive by June.
Critics of the president who play down the importance of Trumpâ€™s judicial appointments make an enormous mistake. For those whose faith is crucial to their lives, â€śTrump judgesâ€ť make all the difference in the world.