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How would Brett Kavanagh rule in Supreme Court religion cases?

President Donald Trump listens as Judge Brett Kavanaugh, his Supreme Court nominee, speaks in the East Room of the White House on July 9, 2018, in Washington. (AP Photo/Evan Vucci)

If Brett Kavanaugh is confirmed to replace Anthony Kennedy on the Supreme Court, there is every reason to think that the Court will become more accommodating to conservative religious interests and concerns. But it won’t necessarily become as accommodating as those on the religious right would like.

Their bill of particulars against an institution they have long held in suspicion goes all the way back to the decisions that mark the origin of today’s culture war—the banning of teacher-led prayer and Bible reading in the public schools in 1962 and 1963. In 1968 the Court prohibited state law forbidding the teaching of evolution. In 1973 it established women’s constitutional right to abortion—which has been the central focus of conservative religious politics for the past 40 years. And in 2015, it established a constitutional right to same-sex marriage.

Subsequently the Court barred officially sponsored prayers at public school graduations and football games, and placed limits on religious displays—crosses, creches, and Ten Commandments plaques—in public spaces. Between 1986 and 2015, it went from upholding laws against sodomy to finding a constitutional right to same-sex marriage.

To be sure, the Court has also promoted conservative religious interests. Over the past two decades it has recognized students’ rights to pray and operate religious clubs in public schools. It has helped religious schools gain access to public funds. And it has guaranteed the right of religious institutions to fire at will employees they consider ministers and recognized a right of religious free exercise for some for-profit corporations.

So how would a Judge Kavanaugh affect the Supreme Court’s approach to religion cases? Based on his record as a lower judge in the D.C. Circuit  Court of Appeals, where he has sat since 2006, Kavanaugh appears to be a relatively nuanced interpreter of the law.

There’s no pro-life zealotry in the brief concurrence he wrote in the 2011 case of a man who claimed the right under the First Amendment and the Religious Freedom Restoration Act to chalk the sidewalk in front of the White House to protest President Obama’s position on abortion. Concurring with his colleagues in upholding a District of Columbia ordinance against defacing government property, Kavanaugh wrote, “I add these few words simply because I do not want the fog of First Amendment doctrine to make this case seem harder than it is. No one has a First Amendment right to deface government property.”

In Newdow v. Roberts (2010), two judges on the three-judge panel ruled that a group of atheists did not have standing to challenge religious language (such as “so help me God”) employed in presidential inaugurals. Addressing the substance of the objection, Kavanaugh held that the language did not violate the Establishment Clause. “Inaugural prayers are traditionally inclusive and largely non-sectarian,” he wrote. “They typically include many references to God, Lord, and the like, which are considered non-sectarian for these purposes.”

His only majority opinion in a religion case involved a claim by evangelical chaplains that the Navy violated the Establishment Clause by giving Catholic chaplains age waivers so that they could obtain retirement benefits. Upholding the district court decision, Kavanaugh found that because the evangelical chaplains could not demonstrate harm to themselves, they lacked standing to challenge the practice.

Perhaps his most significant religion opinion is a dissent rejecting the government’s requirement that religious non-profits fill out a form seeking an exemption from the Affordable Care Act’s contraception mandate. In it, Kavanaugh embraces Justice Kennedy’s position that that the government has a compelling interest in ensuring that women receive free contraceptive services. But is this a sign of moderation or simply a smart jurist’s way of appealing to the high court’s swing vote?

Over all, what Kavanaugh has said about religion law off the bench may be more revealing than what he’s said on it. In 1999, he wrote a friend-of-the-court brief for two Republican congressmen in Santa Fe v. Doe, which challenged a public high school’s procedure for enabling students to offer prayers over a loudspeaker prior to football games. The brief is disturbing less for its inability to recognize why the Court might (as it eventually did) find the procedure unconstitutional than for its suggestion that an adverse ruling would afford religious Americans fewer rights than “Nazis and Klan members.”

More seriously, in a speech celebrating the constitutional jurisprudence of Chief Justice William Rehnquist, Kavanaugh makes it clear that he wishes Rehnquist had been able to dissuade the Court from finding a constitutional right to abortion. Whether he would at this juncture be prepared to overturn that right is, of course, a critical question.

If Kavanaugh wins Senate confirmation, the best early read on his religion jurisprudence could come from two cases now on appeal to the high court.

One involves the Bladensburg Cross, a 40-foot stone monument in Prince Georges County, Maryland, built by the American Legion in 1925 as a memorial to those who died in World War I. In March, a narrowly divided Fourth Circuit found that it violated the Establishment Clause and needs to be removed or destroyed.

The Supreme Court has in recent years taken a situation-specific approach to religious displays, with a preference for tolerating long-standing monuments that were put in place without an agenda of advancing a religious purpose. If Kavanaugh were to join a majority in deciding that the Cross can stay, the consequences would be minimal.

The other case is an appeal from a unanimous decision in April of the New Jersey Supreme Court, which found that the state constitution bars the use of public funds to support the historic restoration of churches. If the Court were to find that religious edifices have as much of a right to receive public restoration funds as secular buildings, the consequences would be monumental. Across the country, state and local governments would suddenly find themselves under an obligation to pay for repairs to houses of worship.

And they could well have Justice Kavanaugh to thank for it.

About the author

Mark Silk

Mark Silk is Professor of Religion in Public Life at Trinity College and director of the college's Leonard E. Greenberg Center for the Study of Religion in Public Life. He is a Contributing Editor of the Religion News Service

76 Comments

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  • All I know about Brett Kavanaugh is that I’m seeing TV ad after TV ad praising him and his accomplishments, paid for by the Judicial Crisis Network. After doing a little research on JCN I found out this:

    Newly obtained tax documents show that JCN’s money came almost entirely from yet another secretive nonprofit, the Wellspring Committee, which flooded JCN with nearly $23.5 million in 2016. Most of Wellspring’s funds, in turn, came from a single mysterious donor who gave the organization almost $28.5 million — nearly 90 percent of its $32.2 million in revenues. Like JCN, Wellspring — at one time tied to the donor network spearheaded by conservative industrialists Charles and David Koch — is a nonprofit that is supposed to be dedicated to social welfare functions and doesn’t have to disclose the names of its benefactors.

    So there you have it: Kavanaugh is the hand-picked darling of the Koch brothers who are funding promotional ads for him so he can help them enact their agenda for the 0.1%. And they’re funding their message through dark money channels all thanks to the odious Citizens United Supreme Court decision from 2010.

    That’s all I need to know. He’s a bad choice and Democrats need to oppose his nomination with everything they’ve got.

  • Nobody really knows which way Kavanaugh will vote on the issues. If he’s confirmed, all a person can do is pray and be watchful.

    However, the sobering fact is that if Kavanaugh at least uses his swing vote to help put Constituional Religious Freedom on genuine, USSC-backed, no-doubt-about-it legal safe ground for the innocent, fair-minded, conscientious Christian small-business vendors like Jack Phillips and Baronelle Stutzmann,

    that one event would potentially destroy the demon-possessed Obergefell decision (even if Obergefell is never officially overturned by the USSC.) So I seriously hope Kavanaugh survives the imminent Democrat grinder.

  • Wishful thinking was buried with Scalia. The demon you speak of is buried in Biden’s bowels and is dreaming of 2020. The earth does not have enough time left to weather the storm. Argentina escaped the flaming arrow of abortion which might have bought them some time, but the prognosis for earth’s survival is slim to none, as the nones are growing in number.

    Justice Thomas could buy the country some time, if he decided to retire.

  • You are demon-possessed. You’d think that black people would figure out that discriminating against gay and trans people is wrong, but apparently not. What the hell is wrong with you?

  • I was talking to my cat about the rapture and the disappearance of humans. She told me that the rapture is the cats idea. Seems a number of pastors, preachers and ministers in the seventeenth century used to make mufflers (hand warmers) out of cat skins. The cats got together and decided the best way to skin a cat (minister) was to rapture the cat skinning creatures off the earth.

    As the preachers eventually disappeared and the practice stopped, the cats pass this story of the rapture down from generation to generation, assuming the rapture is true.

  • Ah yes, you’ve noticed my newest description of Obergefell. Please consider it, Charlotte. People normally discuss Obergefell in terms of politics, law, etc. But suppose we try to assess Obergefell in spiritual terms only? What would the result look like? You guessed it: Demon-Possessed.

    Honestly, there’s NO spiritual upside to Obergefell. Damage to individuals, Damage to their families, Damage to kids, Damage to churches & denominations, Damage to communities, Damage to the soul of America. Now Dred Scott, Plessy, and Roe, were all bad, and America suffered for those USSC decisions. But THIS one decision, like the biblical Sodom, is a line-crosser, a deal-breaker, it’s the Ezekiel 16:50 that you NEVER want to experience after Ezekiel 16:49. It’s like what happened recently when a popular “Ghost Hunter” and his pals finally explored one demonized house too many — Damage all over the place!! So gay or straight, Christian or Atheist, I humbly ask readers to think about this aspect.

  • He can do it easily by simply stating the Great Kibosh:

    Putting the kibosh on all religion in less than ten seconds: Priceless !!!

    • As far as one knows or can tell, there was no Abraham i.e. the foundations of Judaism, Christianity and Islam are non-existent.

    • As far as one knows or can tell, there was no Moses i.e the pillars of Judaism, Christianity and Islam have no strength of purpose.

    • There was no Gabriel i.e. Islam fails as a religion. Christianity partially fails.

    • There was no Easter i.e. Christianity completely fails as a religion.

    • There was no Moroni i.e. Mormonism is nothing more than a business cult.

    • Sacred/revered cows, monkey gods, castes, reincarnations and therefore Hinduism fails as a religion.

    • Fat Buddhas here, skinny Buddhas there, reincarnated/reborn Buddhas everywhere makes for a no on Buddhism.

    • A constant cycle of reincarnation until enlightenment is reached and belief that various beings (angels?, tinkerbells? etc) exist that we, as mortals, cannot comprehend makes for a no on Sikhism.

    Added details available upon written request.

    A quick search will put the kibosh on any other groups calling themselves a religion.

    e.g. Taoism

    “The origins of Taoism are unclear. Traditionally, Lao-tzu who lived in the sixth century is regarded as its founder. Its early philosophic foundations and its later beliefs and rituals are two completely different ways of life. Today (1982) Taoism claims 31,286,000 followers.

    Legend says that Lao-tzu was immaculately conceived by a shooting star; carried in his mother’s womb for eighty-two years; and born a full grown wise old man. “

  • You are wasting your time in doing so. Church blacks are the f*cking worst. This is why we can’t have Christians running the government: all they care about is lynching gay and trans people, and forcing women to breed against their will.

    YOU are the ones who think that you are the “Massa”, now.

  • Oh, I don’t think it’s such a waste of time, Charlotte. It’s just something to consider, (something quite important, that is.)

    But speaking of all those pesky “Church Blacks”, did you know that after 14 years as a lesbian, Janet Boynes isn’t a lesbian anymore? What do you think about her situation?

    http://www.thechurchguide.com/exlesbian.htm

  • Yep, follow the money.
    Donations to the Clinton Foundation while Hillary Clinton was a senator, candidate for president or Secretary of State:

    $25 million from Saudi Arabia

    $2.5 million from uranium one; a uranium mining company that has ties to Russia.

    $500,000 from Algeria.

    Other donors: Qatar, Kuwait, Oman, Indonesia, UAE, Bahrain.

  • Anecdotal. There are millions of LGBTQ+ people worldwide who are sick and tired of living under the constant threat of getting lynched by the likes of you. How much money do you make to spew such vile hatred? Have you not seen the lynching museum in Montgomery, AL? When do LGBTQ+ people get a museum for the gay purge in Chechnya? This is literally a holocaust against our people.

    Church blacks need a new hobby, besides minding other people’s business. Get your own sex lives.

  • I am absolutely certain that we can all believe that you actually conversed with your cat.

    And the more intelligent of the two of you got the upper hand in the conversation … the cat.

  • Yes, bake our damn wedding cakes! It hurts our feelings when you refuse to acknowledge our way of, you know, being intimate.

  • That’s right! Because the right to force society to celebrate men ejaculating into each other’s rectums is what makes us truly free.

  • “Yes, bake our f*cking wedding cake, or else…more Matthew Sheppardz”.

    I like the cut of your logic.

  • Kavanaugh is an ideologue–just like Scalia. That’s all we need to know to understand how he will vote.

  • They aren’t necessarily “in decline.” People have always been, collectively, irrational, and that’s because it’s human nature to be irrational. It’s how we’re wired. The way people think and perceive the world is riddled with flaws, all of which are embedded deep within our psychology (and neurophysiology).  

    We can’t do away with our irrational natures, but we can actively resist our inherent irrationality, and work to think and behave in rational ways. That said, our own brains constantly undermine this effort behind-the-scenes, and can even block correction (via psychological flaws called “the backfire effect” and “the Lake Wobegon effect“). People become emotionally attached to their irrational tropes, so that it becomes painful to let go of them via debunking; and they have a false awareness of their command of knowledge and talent, which leads them to think they’re much more expert in things than they are. 

    I think what’s happened recently, to make this seem different, is that our inherent irrationality (and resistance to correction) has been coupled with a cultural/social trend toward disparaging knowledge and logic. The ubiquity of this anti-intellectualism has, in turn, led to people being increasingly unabashed about their horrible ideas. They’re expressing them in ways they might haven’t, previously. In particular, white supremacy — the expression of which was quelled somewhat by the civil-rights movement — has resurged, because it never really left us, and its adherents now think it’s something they can let show once again (as they had during the period of “Jim Crow”). 

    Lastly, there’s now a lot of culturally- and religiously-perpetuated immaturity in the world (not just in the US). This prevents people from understanding that, maybe, their stupid tropes and wild antics aren’t something they ought to express freely and openly (even if they won’t change their minds about them). It’s literally impossible for humanity to change course, stop embracing their irrationality, and begin resisting it, until they’ve first become more mature. Without maturity, we have no hope — at all. Unfortunately, celebrating immaturity has become increasingly common, and most folks really have no comprehension of how infantile they actually are. More’s the pity. 

  • Floydlee, you apparently do not understand that anecdotal evidence always undermines the point an individual is trying to make.

    Since you probably don’t understand what that means, I’ll elaborate: cite statistical data to make your points,. People who cannot cite statistical data are reduced to citing this or that case; doing so is an indication that there is no real evidence supporting the point a claimant is trying to make.

  • Yes I do.
    I just want to point that out to all my friends on these pages that rant against all things trump yet ignore the same thing when one of their “people” do it.
    It almost as if history just started in 2016.

  • LOL. Since my sock puppet’s comments are private, you can only infer my IQ from the few trolling comments I have made pointing out the lack of logic in your comments.

    You rant like a teenager “Muh Matthew Shepard” “Muh Transphobia” “Muh gender non-conforming friends are being holocausted daily”

    You are programmed so obviously to check off the boxes of the latest craze of transphobia. You show no originality of thought.

    Stop seeing the world in terms of “Jews had nothing on what I feel” and you might start being living.

  • Well, here’s the thing: Elagabulus’s comment addressed the dark money being used to press for Kavanagh’s confirmation — Kavanagh, of course, being the topic of this article. There was no need for him to bring up anyone else’s dark money spent on any other matter … because none of those are relevant to this article. 

    It’s not rational to expect people to purposely launch into off-topic material, in the name of appearing to be “fair,” or something. It simply is not. No amount of supposed dark money ever paid to the Clinton Foundation, or paid out by George Soros to anyone else, has the slightest bearing on the dark money spent on Kavanagh’s behalf. 

    Now … if someone posts an article about the Clinton Foundation or George Soros, then the content you wanted Elagabulus to mention would, it turns out, have been entirely relevant. But, this is not such an article. 

  • See, the funny thing is that there never is any commentary on the Soros’s dark money; or the improprieties of the Clinton campaign or any sense of balanced reporting or commentary on these pages. So they way I see it; it’s perfectly fair to bring a little history to the table for those with a little less experience or intellectual honesty.

  • Re: “See, the funny thing is – there never is any commentary on the Soros dark money …” 

    And why would there be, when the article being commented on is about Kavanagh? What reason would anyone have, to bring up Soros? Or the Clinton Foundation? Or any of the other bogeymen you’re obsessed with? None of them is relevant to this article. 

    Re: “So they way I see it; it’s perfectly rational to bring a little historical perspective to the table …” 

    No it isn’t, if there’s no appropriate antecedent in the original article. 

    Re: “My simple question always is, if you are so concerned about “X” now that trump is doing it; where were you when (insert the appropriate democrat) was doing it?” 

    Why would you ask me such a thing? I wasn’t the one who brought up the Kochs’ dark money being used to press for Kavanagh’s confirmation. All I did was point out you relied on “two wrongs make a right” thinking when you introduced the Clinton Foundation and Soros into a discussion about Kavanagh and his pending confirmation. I don’t owe you the explanation you demand — and will under no circumstances address it. Except to point out that, at no time in any of my comments here did I ever express approval, or disapproval, for anything the Apricot Wonder, or the Kochs, or the Clintons or Soros, have ever done. I never said anything about any of them. 

    Look, I get the attraction of “two wrongs make a right” thinking. It’s easy to be outraged by an accusation against one of one’s ideological heroes when one believes one’s ideological opponents have done the same thing. It goes against a basic notion of “fairness.” Unfortunately, “fairness” is subjective and therefore of no account. Besides, no one ever said life was “fair.” It can even feel like a personal attack, to see such a condemnation … but that really doesn’t matter. 

    The bottom line is: No one is attacking you by refusing to mention Soros or the Clintons in response to an article that has nothing whatever to do with them. That’s just how it is. Either you’re mature enough to understand that, or you’re not. I’ve explained it to you as much as you deserve; either you’ve got the courage to accept that explanation and stop being sanctimoniously outraged that people didn’t say things they were never under any obligation to say, or you don’t. The choice is yours. 

  • Yes. The choice is mine. Thank you for that; that’s very righteous of you.
    Until there is intellectual honesty by others on this page to incorporate or at least consider/mention historical facts before they sling their accusations, I will continue to respond as I do.
    Sorry to disappoint.
    I’ll be interested to see your policing skills going forward as eblabulus weaves in the evils of trump and conservatism into his response to every article.

  • Ooh, I love statistics!

    In 2016, the homicide rate in the United States was 5.3 per 100,000, homicide meaning all unlawful killing (negligent homicide, manslaughter and intentional murder). That rate has held steady for the last two decades.

    If we assume 0.01% of the population is trans, and given a growing U.S. population from between high 200 millions to 320 million, lets normalize and assume 30,000 trans people on average in the United States since the 1990s. (However likely more)

    So if more than 1.5 transpersons were unlawfully killed in the U.S. in any given year, we would investigate this phenomenon. If it was ten or twenty a year, that would be significant.

    From your Wikipedia link, I see the following:

    – three American (one Spanish) trans persons killed in all of the 1990s
    – one American trans person was killed in 2001
    – the highest rate is three American trans people killed in 2008

    Overall, seems to me that being a trans person in the United States is safer than the average.

    Thanks. Didn’t know that. Very informative.

  • Re: “Until there is intellectual honesty by others on this page …” 

    Threre has been no “intellectual dishonesty on this page” except from you — demanding that everyone else bring up all sorts of off-topic bilge in order to satisfy your childish ideological vendetta. 

    Re: “I’ll be interested to see your policing skills going forward …” 

    You need not worry about anyone other than yourself. If you do that, maybe you’ll learn to think logically instead of letting your sanctimonious outrage control you and demanding that everyone else here comply with your emotional needs. 

  • You didn’t. But obviously Elagbulus did, because his failure to mention what you demanded he mention, plainly angered you. Waaaah wah waah, little baby. Take your whataboutery and burn it already. 

  • Wow. You fell to the lowest common denominator of name calling. So much for being rational, enlightened and mature.
    Again, I have no problem calling out those with selective memories; apparently you see no problems with those who do.
    And remember my friend, you responded to me. If you don’t like my answers, then don’t reply to them or block me.

  • So by your own admission, the stats on unlawful mortality of trans people is way below average.

    On that basis…I’m gonna get me a wig and dress and slap some lipstick on!

  • Re: “Again, I have no problem calling out those with selective memories …” 

    You’re assuming something not in evidence. That people did not mention what you demand they mention, does not mean they don’t know about it or have “selective memories.” Rather, it means they stuck to the topic of the article and didn’t introduce irrelevant dreck simply to provide you with emotional and ideological comfort. 

    Someday you’ll grow up and realize your whataboutery is childish garbage, but not until you’ve outgrown your ideological enslavement and the enforced infantilism that goes along with it. 

  • “Muh trannycaust” “Muh tranny lynchings” Not much else to your posts.

    For your own sake, get your head out of your posterior orifice and enjoy life a little. You might find true meaning and purpose.

  • No, I mean whining. You actually think it’s incumbent on everyone else in the world to provide you with a constant stream of emotional and ideological comfort. That’s as childish as one can get, and your repeated bellyaching about it reminds me of a two-year-old. Just grow up already and knock off the sniveling. 

  • Again, You keep replying and name calling. You should call your psychiatrist and talk to him about your need for attention.

  • I don’t need a psychiatrist, you do. You’re the one who requires that everyone on the planet actively work to soothe your emotions by mentioning things you demand be mentioned all the time. 

    All I’ve done, on the other hand, is to call this out as not merely illogical, but asinine and childish. If you want to refer to that as “name-calling,” go right ahead. In truth, those names fit. If you don’t like hearing them being applied to you, there’s an easy solution, which is for you to grow up and stop demanding everyone else on the planet mention all these things you want mentioned all the time. 

  • Dude, I lost the better part of minutes of my life discovering what you all already knew. Why didn’t you warn me!

  • What — no snappy invidious retort? Has the hateful chatterbox troll of RNS been rendered silent?

  • Hey mr cop – eblabulus is dragging trump into the article discussing Keith Ellison’s alleged domestic abuse.
    Just wondering if your going to address the issue with him?!
    Based upon your standards, his additional comments are off limits….
    Correct?

  • Re: “Hey mr cop – eblabulus is dragging trump into the article discussing Keith Ellison’s alleged domestic abuse.” 

    I have no idea what you’re talking about. At all. I never saw any comments about Ellison … until yours, just now. Obviously you’ve gone off the rails. 

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