Will Justice Jackson Protect Religious Freedom?

Ketanji Brown Jackson’s recent recognition that religious freedom is a ‘foundational constitutional right’ is important. But her record is not encouraging.

Judge Ketanji Brown Jackson looks on during a meeting with US Senator Tammy Baldwin, D-Wisc., on Capitol Hill in Washington, DC, on March 28, 2022.
Judge Ketanji Brown Jackson looks on during a meeting with US Senator Tammy Baldwin, D-Wisc., on Capitol Hill in Washington, DC, on March 28, 2022. (photo: Jim Watson / AFP/Getty)

In her opening statement before the Senate Judiciary Committee, Supreme Court nominee Ketanji Brown Jackson said something beautiful. After thanking members of Congress and President Joe Biden for the honor of the nomination, Jackson said, “And while I am on the subject of gratitude, I must also pause to reaffirm my thanks to God, for it is faith that sustains me at this moment. Even prior to today, I can honestly say that my life has been blessed beyond measure.” I’ve no doubt that Jackson was being sincere. 

Article VI of the U.S. Constitution specifies that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” This “No Religious Test” doesn’t mean that talking about religion is to be avoided at a Supreme Court nomination hearing. After all, we are not dealing with a dinner-party conversation. So while asking a nominee about his or her “faithfulness” is hard to square with Article VI or, indeed, good manners, questions about the protection of religious freedom under the law are another matter. They need to be asked; they are an important part of the Senate’s “advice and consent” responsibilities. 

Sen. John Cornyn, R-Texas, understands this and used the hearing to address the issue. He mentioned that when he served as attorney general for Texas, he unsuccessfully argued Santa Fe Independent School District v. Doe, a 2000 case where the court ruled that a Texas school-board policy that allowed “student-led, student-initiated prayer” before varsity high-school football games was a violation of the First Amendment’s Establishment Clause. The court’s decision, Cornyn told Jackson, “[left] me to conclude that in the public square we can talk about everything from violence, to misogyny, to sex, you name it, but we can’t talk about sincerely held religious beliefs.” He added, “I would just footnote that for you and plant the seed, for what it’s worth.” 

Cornyn also mentioned the continuing battle fought by the Little Sisters of the Poor to be exempt from the Affordable Care Act’s contraceptive mandate and asked whether Jackson agreed that “it’s important to accommodate the sincerely held religious beliefs of all Americans when it comes to legislation that the Congress may pass.” Jackson replied that religious freedom is a “core, foundational constitutional right. ... It’s in the First Amendment of the Constitution and reflects the Founding Fathers’ understanding of this country as being one that is based in large part on the idea of pluralism, the idea that people can come and have sincerely held religious beliefs and practice them without persecution. That’s part of the foundation of our government.”

Jackson’s recognition that religious freedom is a “foundational constitutional right” is important. But will she protect religious freedom as a Supreme Court justice? Her record is not encouraging. And for all the specific questions she was asked, she was asked little about religious freedom. Given how enthusiastic the progressive groups invested in undermining religious freedom have been, going so far as to call Jackson a “breath of fresh air,” serious questions remain. We don’t know, for instance, what she thinks about the following three crucial principles: 

 

‘Unpopular’ beliefs are constitutionally protected.

Religious freedom in America is for all believers and all beliefs — especially the unpopular ones. Today, this principle is under attack. Take, for example, last year’s push by progressives to enact the Equality Act. This sweeping expansion of our civil-rights laws to add sexual orientation and gender identity to the list of protected traits also erased some legal protections for those who have a traditional religious view on human sexuality and the human person. The legislation did not get through the Senate, but the fact that there were so many lawmakers who supported it is worrying. It’s a classic example of an attempt to legislate ideological conformity with no regard for religious conviction. 

As more and more state and local governments enact public-accommodation laws and anti-discrimination policies that include sexual orientation and gender identity (SOGI laws), the Constitution’s protection of religious freedom will continue to be tested. 

A current majority of the justices of this Supreme Court understand that laws that look to be “generally applicable” and “neutral” can be weaponized against religious objectors. In the coming years, the Court will have to outline a workable standard for safeguarding the religious freedom of those with traditional and increasingly “unpopular” beliefs. Would a Justice Jackson join them?

 

Beliefs need not be ‘officially endorsed.’ 

Many Catholics, myself included, have received the COVID vaccine. There are others who object on religious grounds to receiving any of the three available vaccines based on the vaccines’ reliance in testing or production on an aborted baby’s cell lines. And while the Congregation for the Doctrine of the Faith and the U.S. Conference of Catholic Bishops have said that receiving a COVID-19 vaccination is permissible, they have also insisted that it is not morally required and generally should not be mandated. Assuming that a person’s objection is based on their sincerely held religious opposition, they shouldn’t be asked to produce a letter from their pastor, bishop or even the Pope himself. Does Jackson agree?

 

Religious exercise mustn’t be targeted for unfavorable treatment.

During the early months of the pandemic, some government officials targeted worship and other religious activity. It took intervention by the Supreme Court to stop them. Several recent decisions by the Court have also reminded government officials that religious groups cannot be denied the chance to receive generally available public benefits. Despite these decisions, religious schools continue to be excluded from government-endorsed school-choice programs. Will Jackson side with the growing progressive consensus that religious schools are dangerous to society — or will she oppose such blatant religious discrimination? 

Religious freedom in America is under attack as never before. For all that President Biden’s Supreme Court nominee, Judge Ketanji Brown Jackson, was asked about judicial philosophy, which came up a lot, she wouldn’t give any indication of her philosophy. That’s concerning. 

I guess only time will tell if the soon-to-be Justice Jackson, a woman who says she is sustained by her faith, will dare to cross the ideological aisle and join her conservative colleagues on the bench in safeguarding specifically enumerated constitutional rights such as our free-exercise guarantee.

Ivan Aivazovsky, “Walking on Water,” ca. 1890

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