Judge Kavanaugh’s record on religious liberty and personal conscience examined

Washington D.C., Aug 3, 2018 / 13:30 pm

As the Senate prepares for confirmation hearings on Judge Brett Kavanaugh's nomination to the Supreme Court, scholars and commentators are considering his past approaches to religious liberty cases.

While much of the media coverage of Kavanaugh's nomination has thus far focused on abortion, and how he might respond to an attempt to overturn Roe v. Wade, his judicial opinions on religious liberty could prove just as influential.

Many of the most contentious cases to come before the court in recent years have been argued on religious liberty grounds. Cases like Burwell v. Hobby Lobby and Masterpiece Cakeshop v. Colorado Civil Rights Commission were focal points for cultural clashes as much as legal argumentation.

Attention is now turning to opinions Kavanaugh issued during his time on the U.S. Court of Appeals for the District of Columbia.

Law Professor Frank Ravitch, who teaches at Michigan State University College of Law, recently highlighted in a post at SCOTUS Blog several cases that could indicate how Kavanaugh approaches the subject of religious liberty from the bench.

The most prominent of these cases was Priests for Life v. United States Department for Health and Human Services. In that case, Priests for Life objected to the government's contraceptive mandate which, under the accommodation for religious organizations, required Priests for Life to file a specific form with either the insurance provider or the government. They argued that the form they were required to file effectively triggered the coverage of contraceptives, making them complicit in an act they considered immoral.

The D.C. Circuit Court of Appeals denied Priests for Life a rehearing, but Kavanaugh wrote a dissenting opinion. In it, he argued that the government's accommodation did place a "substantial burden" on religious organizations, making them act against sincerely held beliefs or else face significant fines.

Kavanaugh emphasized that it the good faith claims of religious organizations about being made complicit in immoral actions could not be questioned by the court, even if the court thought they were misguided.

At the same time, he accepted that the government had a "compelling interest" in broadening access to contraception, but that religious organizations could have been better accommodated by allowing them to simply give notice of their objections.

Ravitch noted that Kavanaugh's arguments were based substantially upon the Supreme Court decision in Burwell v. Hobby Lobby, and specifically Justice Anthony Kennedy's concurring opinion in that case. If confirmed, Kavanaugh would fill the seat on the Supreme Court vacated by Kennedy's retirement.

Another case which could signal how Kavanaugh might approach religious liberty cases from the Supreme Court is Newdow v. Roberts. In this case, a panel of the D.C. Circuit confirmed the dismissal of a complaint against prayers and the phrase "so help me God" in the oath of office during the presidential inauguration of 2008.

The complaint was dismissed on the grounds that the 2008 inauguration was now moot, and that there was no standing for the plaintiffs to preemptively challenge future inaugurations.

While Kavanaugh agreed with the dismissal, he disagreed that the plaintiffs – atheists offended by the instance of public prayer – lacked standing.

In his concurring opinion, he noted that "all citizens are equally American, no matter what God they worship or if they worship no god at all."

He argued that, even though some forms of public prayer, like those at presidential inaugurations, were part of long-established traditions and not, therefore, a violation of the constitutional separation of church and state, "we cannot resolve this case by discounting the sense of anguish and outrage plaintiffs and some other Americans feel at listening to a government-sponsored religious prayer."

Some commentators have called this recognition of atheistic objections "troubling." Yet others have acknowledged the common thread between the two opinions in Newdow and Priests for Life. A crucial part of Kavanaugh's approach to religious liberty appears to be the legitimacy of individual conscience in front of a court.

This was also a key issue in the Masterpiece Cakeshop case, where the disregard of Colorado authorities for Christian beliefs figured heavily in the Supreme Court's decision.

Looking ahead, the Supreme Court seems likely to hear more such cases in the future.

For example, despite new rules from the Department of Health and Human Services meant to protect religious non-profit organizations and broaden religious exemptions, the Little Sisters of the Poor are back in court over their refusal to provide abortifacient drugs as part of their health care plan.

Pennsylvania Attorney General Josh Shapiro filed suit against the federal government in October of last year, seeking to end the religious exemption for the Little Sisters of the Poor. A similar suit was also filed by the state of California.

Should those or similar cases progress, the importance of private conscience could again prove crucial in the Supreme Court's reasoning, and Kavanaugh could well prove to be the deciding vote.