Because of its likely rebuff to a key progressive principle, Espinoza is potentially the most significant Supreme Court case this term.
It has puzzled some that evangelicals and other religious people are supporting Donald Trump. He is twice divorced, boasts of many affairs, and seems to know nothing of scripture. In religious matters, he has reminded me of Rex Mottram, an industrialist turned politician and figure of fun in Brideshead Revisited, about whom it was said that “he has no religious curiosity or natural piety.”
But for those concerned about the religious rights, Trump’s indifference pales before Hillary Clinton’s hostility. Of course, Clinton does not say she is hostile, but her core beliefs and political coalition will collide again and again with religious liberty, as surely as have those of President Obama. It was his administration that filed an extraordinary amicus brief stating that churches should receive no more protection for their employment decisions than secular associations, despite the Free Exercise and Establishment Clauses. It was his administration that has tried to force religious organizations to be complicit in advancing access to devices they deemed immoral, even though there were other ways of providing access.
There is every reason to believe that Clinton will continue to encourage government entrenchment on religious liberty and freedom of conscience.
First, Democrats on the West Coast, leading indicators of where Democrats go on cultural issues, are ramping up requirements that many religious believers in good conscience cannot fulfill, such as requiring all pharmacies to provide drugs regarded as abortifacients.
Second, at oral argument in the same-sex marriage cases, Solicitor General Verrilli made it pretty clear that once same-sex marriage was declared a constitutional right, that religious schools might well be forced to house same-sex couples in their dormitories. Thus, he signaled that it would be very difficult for religious denominations to keep practices consistent with their view of sexuality except in the sanctuary of religious services.
Ultimately the logical culmination of the Progressive view in these matters is to analogize opposition to permissive views on sexuality and indeed gender identity to racism. Thus, any practices outside of a church based on these views must expurgated, including in education, which is the crucial to transmission of religion from one generation to the next. It is not hard to imagine a second-term Clinton administration removing tax exemptions from colleges that have norms against same-sex conduct, as tax exemptions where removed from Bob Jones University based on its ban on interracial dating.
Given that views about the proper sexual relations have been important parts of religious teaching of many denominations for millennia, it is hardly surprising that many in these denominations see Clinton’s election as a grave threat to their religious practices and thus give their support to an irreligious man. They know Trump is not likely to appoint Supreme Court justices who will shrink the Free Exercise Clause and the Religious Freedom Restoration Act or write regulations that put them to choice of giving up their practices or their tax exemptions. About Clinton, they know no such thing.