AMAC Exclusive
In recent years, a series of landmark court decisions has solidified what may be the most unsung part of Donald Trump’s presidential legacy. Through his historic number of judicial appointments, it is increasingly evident that Trump saved religious liberty in America.
The pivotal cases protecting conscience rights have gone ignored by many in the media, but hardcore progressive activists are noticing, and they aren’t happy. Rachel Laser, the president and CEO of Americans United for Separation of Church and State, told Ronald Brownstein of The Atlantic—in a panicked storm of woke buzzwords—that this golden age of religious liberty is “dial[ing] back social progress in light of our changing demographics and progress toward greater equality.”
Such anti-faith activists may have growing currency on college campuses. But they are going broke in court.
Working closely with Senate Majority Leader Mitch McConnell, President Trump appointed 234 federal judges, including three Supreme Court justices, in just four years. By the time Trump left office, he had appointed almost one out of every three appellate court judges.
Unsurprisingly, the Trump-era Supreme Court has helped usher in a golden age of religious liberty legal decisions. Bolstered by the addition of Justice Neil Gorsuch in 2017, the Court held in Trinity Lutheran Church of Columbia v. Comer that the State of Missouri could not deny grants to religious schools for resurfacing playgrounds simply because of a school’s religious association—a decision that could have sweeping implications for the future of parochial schooling.
One year later, in Masterpiece Cakeshop v. Colorado Civil Rights Commission, the Court issued a narrow but important opinion that made clear that states cannot blatantly brush aside the demands of a Christian baker’s conscience by forcing him to bake cakes for same-sex marriage ceremonies.
By 2020, with new Trump-appointed Justice Brett Kavanaugh joining Gorsuch, the Court issued another landmark ruling. In Espinoza v. Montana Department of Revenue, the Court took aim at and struck down Montana’s version of what is known as the Blaine amendment.
Like other states which passed similar laws during an anti-Catholic wave of sentiment in the late 19th Century, Montana explicitly prohibited state money from flowing to “any church, school, academy, seminary, college, university, or other literary or scientific institution, controlled in whole or in part by any church, sect, or denomination.”
With a one-vote majority and quoting its earlier decision in Trinity Lutheran, the Court ruled that Montana’s law violated the Constitution’s First Amendment because “disqualifying otherwise eligible recipients from a public benefit ‘solely because of their religious character’ imposes a penalty on the free exercise of religion that triggers the most exacting scrutiny.”
The COVID-19 pandemic and the addition of new Justice Amy Coney Barrett have given the Court even more opportunities to protect religious liberty in even stronger terms.
In Roman Catholic Diocese of Brooklyn v. Cuomo, the Court narrowly ruled in favor of New York’s congregations that Governor Andrew Cuomo’s restrictions on religious gatherings—which capped the number of attendees at much lower numbers compared to other similar groups—were unconstitutional.
Justice Gorsuch wrote an especially colorful concurrence. He opened by simply stating that “Government is not free to disregard the First Amendment in times of crisis.”
He went on to criticize Cuomo directly, saying that “at least according to Governor Cuomo, it may be unsafe to go to church, but it is always fine to pick up another bottle of wine, shop for a new bike, or spend the afternoon exploring your distal points and meridians.”
With these decisions, the Court has surprised many longtime observers. Ira Lupu, a professor at George Washington University Law School, said that in teaching religion and law for 35 years, he had “never seen such a spurt of religious-liberty cases in such a short time, especially where over and over again there is a victory for religious-liberty claims.”
But the justices have made their intentions clear. In Justice Gorsuch’s words, neither he nor the Court will “shelter in place where the Constitution is under attack.”
And no doubt, the attacks will continue.
The Court will soon have another opportunity to rise to the Constitution’s defense in Fulton v. City of Philadelphia. In that case, the Court will decide the constitutionality of Philadelphia’s decision to terminate its foster care contract with Catholic Social Services because the Roman Catholic Archdiocese of Philadelphia practices faith-based adoption.
Of course, conservatives cannot win the culture war simply in court. A conflict of hearts and minds must be won in the classrooms, corporate boardrooms, and the nation’s social and print media platforms. But a Supreme Court willing and able to do its part to protect religious liberty can help us keep faith alive in the meantime.