Will Brett Kavanaugh Protect Religious Freedom?

Analysts expect Trump’s second pick for the U.S. Supreme Court to broadly support free-exercise rights, but some conservatives are ‘troubled’ by his record.

Supreme Court nominee Judge Brett Kavanaugh is shown during a meeting with Sen. Dean Heller, R-Nev., on Capitol Hill July 18 in Washington.
Supreme Court nominee Judge Brett Kavanaugh is shown during a meeting with Sen. Dean Heller, R-Nev., on Capitol Hill July 18 in Washington. (photo: Alex Wong/Getty Images)

WASHINGTON — Days after District of Columbia Circuit Court of Appeals Judge Brett Kavanaugh, 53, was presented to the nation as President Donald Trump’s second pick for the U.S. Supreme Court, liberal activists launched a campaign to frame the jurist as a defender of hidebound Christian churches, and thus a threat to the rights of women.

“Brett Kavanaugh has previously argued that people can be denied contraception because of the religious beliefs of their bosses,” NARAL Pro-Choice America tweeted July 15, citing the judge’s opinion in a legal challenge to the Health and Human Services’ contraceptive mandate brought before the D.C. Circuit Court of Appeals.

“If he’s confirmed to serve on the Supreme Court, birth-control access could be in danger.”

The angry partisan rhetoric has become a predictable feature of Supreme Court confirmation battles. But it also reminds voters that recent cases that spotlight religious freedom, from Hobby Lobby’s successful 2014 legal challenge to the HHS mandate to last month’s victory for a Christian baker who refused to make a cake for a same-sex wedding, have consequences, and Kavanaugh could solidify the justices’ growing support for the first freedom.

That prospect has galvanized liberal opposition to his confirmation, but it has also inspired a slew of Christian leaders to endorse Trump’s pick to fill Justice Anthony Kennedy’s seat.

“Judge Kavanaugh will be a strong defender of the freedoms guaranteed by the Constitution and Bill of Rights, especially our first freedom of religious liberty,” said Russell Moore, the president of the Southern Baptist Convention’s Ethics and Religious Liberty Commission, in a statement that echoed the judgment of many influential evangelical Protestants.

With so much at stake, Kavanaugh’s profile as an active Catholic and his early pro bono work for religious plaintiffs while in private practice have further raised expectation that he will help sweep aside legal hurdles to tax-payer-funded school vouchers, building on the high court’s 2017 decision in Trinity Lutheran Church of Columbia, Inc. v. Comer, which found that a state program that provided grants for playground construction could not exclude a Lutheran preschool solely because of its religious status.


Past Religious-Liberty Record

The jurist’s record of support for religious liberty dates back to the 1990s, and his involvement with the Federalist Society, an influential professional network of lawyers who adhere to originalist jurisprudence and follow the Framers’ intent in their interpretation of constitutional questions. Kavanaugh chaired the organization’s religious-liberty practice group and worked pro bono on related cases before the Supreme Court.

That legacy has provided a measure of reassurance to Christian leaders and activists, and that’s important because Kavanaugh has issued few opinions on religious-liberty cases during his 12 years on the D.C. Circuit Court of Appeals.

“The D.C. Circuit sees a critical mass of cases on administrative law and the functioning of the government, so the controversial cases that come to other appellate judges didn’t often cross his desk,” said Sarah Pitlyk, special counsel for the Thomas More Society, a public interest group that handles abortion and religious-liberty cases.

A Catholic, Pitlyk clerked for Kavanaugh during the D.C. Circuit’s 2010-2011 term. And though she did not work on religious-freedom cases, she was inspired by Kavanaugh’s efforts to “hew as closely as possible to the text of the law.”

“On religious-liberty cases,” Pitlyk told the Register, this practice will “yield decisions that are favorable to religious believers,” because the Constitution and the Religious Freedom Restoration Act (RFRA) provide strong protections for believers and church-affiliated institutions.

To prove her point, Pitlyk cited Judge Kavanaugh’s 2015 dissent from the D.C. Circuit’s refusal to rehear Priests for Life’s legal challenge to the HHS contraceptive mandate — an opinion that has drawn applause from originalist scholars, though a handful of conservative analysts say Kavanaugh’s dissent didn’t go far enough.

Priests for Life was part of a consolidated group of religious plaintiffs that challenged the Obama administration’s narrow HHS mandate “accommodation” for church-affiliated institutions.

Priests for Life and other plaintiffs in similar cases — including the Register’s parent company, Eternal Word Television Network (EWTN) — were required to provide cost-free birth control, including abortion-inducing drugs, in their health care coverage, or, to avoid heavy financial penalties, they had to sign a form that allowed a third-party administrator to offer the services to their employees.

The D.C. Circuit Court of Appeals denied the petition to rehear the case, despite the fact that in the previous year the Supreme Court had sided with Hobby Lobby in its separate legal challenge to the mandate and found that the family-owned craft-store chain was protected under RFRA.

RFRA says the government cannot impose a substantial burden on sincerely held religious beliefs without a “compelling” state interest. When that standard has been met, the government must find the “least restrictive means” to achieve its goal or violate the law.


‘Strongly Pro-Religion’

In his dissent, Kavanaugh applied the high court’s opinion in Hobby Lobby and concluded that the appellate court should have approved Priests for Life’s petition.

“It is not our job to relitigate or trim or expand Supreme Court decisions,” read Kavanaugh’s dissent. He made clear that the mandate violated the rights of religious organizations protected under RFRA’s exacting standard.

Douglas Laycock, a leading authority on religious freedom at the University of Virginia Law School, described Kavanaugh’s dissent in Priests for Life as a “strongly pro-religion view of RFRA.”

After Hobby Lobby, “seven out of eight circuits upheld the regulatory ‘accommodation’ of religious organizations that objected to their insurers providing free contraception separately from the employer’s plan,” Laycock told the Register, and so “Kavanaugh’s position was part of a small minority on the issue.”

Gerard Bradley, a professor at the University of Notre Dame Law School, agreed with Laycock’s assessment.

“Kavanaugh’s Priests for Life opinion … indicates an understanding of what is at stake with religion and abortion that is very encouraging,” Bradley told the Register.

“It is probably a good predictor of where he will go with free-exercise jurisprudence,” he added, while noting that the Priests for Life case did not address constitutional questions.

Bradley also characterized Kavanaugh’s opinion in a less significant 2010 Establishment-Clause case, Newdow. et al v. Roberts, as “basically sound.”

In this case, a group of California atheists led by Michael Newdow argued that the prayers offered during President Barack Obama’s 2009 inauguration, along with references to God in the presidential oath of office, violated the Establishment Clause.

The D.C. Circuit rejected this argument, and the case was ultimately dismissed.

In his concurrence, Kavanaugh concluded that inaugural prayers don’t favor one religion over another and acknowledged the precedent supporting the practice of prayer on such occasions.

The court, he concluded, “cannot dismiss the desire of others in America to publicly ask for God’s blessing on certain government activities and to publicly seek God’s guidance for certain government officials.”


Critics’ Concerns

Yet despite Kavanaugh’s record of originalist and textualist jurisprudence, and his strong defense of RFRA, a small chorus of conservative critics have raised objections to his confirmation.

These critics take issue with one element of Kavanaugh’s dissent in the Priests for Life case.

In his dissent, Kavanaugh looked at how the Supreme Court applied RFRA’s three-pronged standard to the Hobby Lobby case and then discussed how that legal precedent should guide the D.C. Circuit’s ruling.

There was no question, he said, that, “under Hobby Lobby, the regulations substantially burdened the religious organizations’ exercise of religion.”

But when he turned to the second part of the RFRA standard, he concluded that “Hobby Lobby strongly suggests that the government has a compelling interest in facilitating access to contraception for the employees of these religious organizations.”

Legal analysts say Kavanaugh based this judgment on the high court’s reasoning in Hobby Lobby.

The 5-4 majority ruling in favor of the family-owned business depended on Justice Kennedy, the court’s swing vote. And Kennedy, in a separate concurrence, agreed that the family business was protected under RFRA, but he also appeared to share the liberal minority’s acceptance of the state’s “compelling interest” in promoting contraception.

“Justice Kennedy strongly suggested in his Hobby Lobby concurring opinion — which appears to be controlling de facto if not also de jure on this particular issue — that the government generally has a compelling interest in facilitating access to contraception for women employees,” wrote Kavanaugh, in his analysis of Kennedy’s concurrence.

Some of his critics who question that finding say his characterization of the court’s opinion was patently wrong. Others believe the jurist was under no obligation to follow that flawed reasoning, and he should have dismantled the unsubstantiated argument that birth-control use promotes women’s health.


An Originalist Jurist

But Elizabeth Slattery, a legal follow at the Heritage Foundation, suggested that Kavanaugh’s critics on the right have lost sight of the strong, overall thrust of his opinion.

“He is saying that even if the government does have a compelling interest [in expanding access to contraception], they still lose because they violated the rights of Priests for Life and other religious plaintiffs,” Slattery told the Register.

Other concerns have been raised about Kavanaugh’s opinion in the Newdow case. And in one widely cited post, an anonymous contributor to the conservative website The Federalist argued that Kavanaugh should have followed the lead of other D.C. Circuit judges and denied Newdow’s standing to challenge the constitutionality of the inaugural prayers. That failure, read the post, should stir questions about how he would likely address other “frivolous” lawsuits as justice.

Kavanaugh’s supporters, for their part, contend that his decision not to challenge Newdow’s standing was in line with the record of originalist justices, like the late Antonin Scalia.

“[A]s Judge Kavanaugh pointed out, the Supreme Court had addressed countless similar Establishment-Clause cases on the merits, and not a single justice — not even Justices Scalia and Thomas — had ‘ever contended that the plaintiffs [in those cases] lacked standing,’” argued Justin Walker, another former clerk of Kavanaugh’s, in a spirited commentary for National Review that portrayed the jurist as a “warrior” for the first freedom.

Other legal analysts have also stepped forward to defend Kavanaugh’s opinions or his record of pro bono work.

“Brett Kavanaugh also volunteered his time almost 20 years ago to work on a religious-liberty case at the U.S. Supreme Court with me,” said Kelly Shackelford, the president and CEO of First Liberty Institute, in comments posted on National Review’s legal blog, “Bench Memos.” “He has been committed to the Constitution and religious liberty for a long time.”

If Kavanaugh is confirmed, he will put his stamp on the next crop of religious-freedom cases that will build on Hobby Lobby and other vital legal precedents.


Weighing Future Cases

“On religious liberty, the crucial issue going forward is the complex of things around sexuality,” said Notre Dame’s Bradley, referencing the clash between newly established sexual rights and Christian teaching on marriage and sexual ethics.

Before long, legal specialists expect the justices to hear another case that features a Christian vendor who has refused to provide services for a same-sex wedding that could have broader impact than the recent narrowly tailored opinion in Masterpiece Cakeshop.

Down the road, specialists anticipate challenges to laws that force Catholic adoption agencies to place children with same-sex couples or anti-discrimination statutes that have been used to pressure church-affiliated hospitals to provide sex-reassignment surgery for patients who identity as “transgender.”

“On these issues we cannot say for sure what Kavanaugh will do,” said Bradley, “but there are good grounds to expect sound decisions from him.”

Joan Frawley Desmond is a Register senior editor.