by Travis Weber, J.D., LL.M.
August 17, 2018
In light of Supreme Court nominee Brett Kavanaugh’s impending confirmation battle, Family Research Council conducted an overview of his record and explained how he would likely rule on the issues we are concerned about. From that review, here are three ways in which Judge Kavanaugh has defended religious liberty:
- Judge Kavanaugh Has Defended Religious Believers from the HHS Mandate
In Priests for Life v. HHS, he dissented from the D.C. Circuit’s denial of rehearing en banc, arguing that the HHS mandate substantially burdened the organization’s exercise of religion, pursuant to Burwell v. Hobby Lobby. This is a very important conclusion on an important issue and shows Judge Kavanaugh to have a right understanding of the religious freedom burdens that RFRA guards against in this context. While his assertion later in the same case that Hobby Lobby “strongly suggests” that the government has a compelling interest in ensuring broad access to contraceptives seems unnecessary, he did conclude that RFRA protected the claimants because the HHS mandate was not the least restrictive means of achieving any such interest.
- Judge Kavanaugh Has Defended Religious Expression in the Public Square
In Newdow v. Roberts, atheists had argued that “so help me God” in the presidential oath violated the Establishment Clause. The D.C. Circuit rejected their argument, and Judge Kavanaugh wrote a concurrence stating that such “longstanding practices do not violate the Establishment Clause as it has been interpreted by the Supreme Court.”
More recently, in Archdiocese of Washington v. WMATA, the Archdiocese of Washington attempted to purchase advertising space on the Washington Metro during the Christmas season, and the Washington Metropolitan Area Transit Authority refused to sell what it deemed a “religious” message for a religious organization. During oral arguments in this case, Judge Kavanaugh told WMATA’s lawyer that this was “pure discrimination” and an “odious” First Amendment violation, showing a keen awareness of potential violations of free speech and free expression with a religious basis.
[In addition], [h]e helped set up a voucher program supporting religious schools in Florida, and also represented the Adat Shalom Jewish group in their legal battle against a Maryland county that was trying to stop construction of a synagogue.
- Judge Kavanaugh Has Defended Religious Expression in Schools
During his time in private practice, Judge Kavanaugh chaired the Religious Liberty Practice Group at the Federalist Society, and worked pro bono to write amicus briefs in support of religious expression in schools. He wrote briefs in Good News Club v. Milford Central School, and Santa Fe Independent School District v. Doe, in which he argued that a public school must allow religious student clubs to use its facilities in a similar manner as other clubs, and that student-led prayer at football events did not violate the establishment clause, respectively.