The religious liberty case for Trump

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1957 Religious Freedom stamp

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1957 Religious Freedom stamp

The best argument social conservatives have for supporting Donald Trump is the judicial one. Here’s how Rod Dreher put it a couple of days ago:

There is a chance that if elected president, he would defer to his advisers on picking judges, especially for SCOTUS, and give us judges that understand the vital importance of the First Amendment. There is no chance that Hillary Clinton will do this, in my view, and an overwhelming chance that she will appoint judges and advocate policies that drive orthodox Christians further out of the public square. She will consider it a virtue to bankrupt small businesses that resist the LGBT steamroller, and consider it a good deed to unmask and exile “bigots” wherever they are — and smash their institutions.

Indeed there’s a chance — I’d say a pretty good one — that Trump would nominate judges more to Dreher’s liking. But “the vital importance of the First Amendment” is a red herring. At issue is not an imminent threat to the Free Exercise Clause but special religious pleading.

The grandaddy of free exercise cases, Reynolds v. United States (1878), found that Mormons have no constitutional right to practice polygamy. “Laws are made for the government of actions,” the Court declared, “and while they cannot interfere with mere religious belief and opinions, they may with practices.

That dictum was quoted approvingly by the late Justice Antonin Scalia in the most important recent free exercise case, Employment Division v. Smith (1990), which found that members of the Native American Church had no right to ingest peyote as a sacrament. Smith established the Scalia Rule: A free exercise claim cannot prevail against a neutral and generally applicable law — in this case, one against drug use.

But even before Smith, the Supreme Court ruled that Bob Jones University had no free exercise right to prevent the IRS from lifting its tax exemption because of its faith-based ban in interracial dating. Also, in Goldman v. Weinberger (1986), the Court said that an Orthodox Jewish Air Force chaplain had no right to wear a yarmulke while in uniform.

The point is that when it comes to religious liberty, the federal judiciary has always balanced interests, conditioning the right to a religious practice or exemption on a range of state interests, whether they be in preventing one man from having several wives or insuring dress codes in the military.

Would Dreher favor allowing florists and bakers and photographers a free exercise right to refuse their services to mixed race couples? I suspect not. What he wants are judicial decisions that allow those he calls orthodox Christians to “resist the LGBT steamroller.”

In a unanimous decision just four years ago, the Court decided that religious organizations have a free exercise right to choose their leaders regardless of federal discrimination laws. I’d call that a robust commitment to the First Amendment that Hillary Clinton couldn’t do anything about even if she wanted to.

So vote against her if your dominant priority is the agenda of contemporary social conservatism. Just don’t confuse that with religious liberty.