Judge Brett Kavanaugh: A Warrior for Religious Liberty

Judge Brett Kavanaugh shakes hands with Pope John Paul II
A response to an anonymous post at the Federalist

In the past week, every serious, informed conservative who’s been asked about Judge Brett Kavanaugh has championed his unwavering conservative principles. See, for example, Ann Coulter, Laura Ingraham, Leonard Leo, Eugene Scalia, Matt Schlapp, J. D. Vance, and Ed Whelan.

But whereas these and countless more have been proud to put their names to endorsements of the unflappable conservativism of Brett Kavanaugh, yesterday a commentator at the Federalist website was unwilling to sign his or her name to a post accusing Judge Kavanaugh of having “a troubling record on religious liberty.” This anonymous critic charges that Judge Kavanaugh “doesn’t really fully understand religious liberty claims and the law and legal doctrine that support them” or “doesn’t really care, even when the law requires otherwise.” Those outrageous suggestions — that one of the most respected members of the federal bench is either ignorant or willfully lawless — discredit everything the author says and explain why the post was submitted anonymously.

Whether you agree with him or not — and many liberals do not — Judge Kavanaugh has been a steadfast and fearless supporter of religious liberty for decades. When he was in private practice in the 1990s, he chaired the Federalist Society’s Religious Liberty practice group and worked pro bono on cases defending religious freedom. He wrote pro bono amicus briefs defending religious believers in high-profile Supreme Court cases. He represented a synagogue pro bono in a local zoning dispute. He advocated for the selection of judges who protect religious liberty. And as a judge himself, his record of defending religious liberty is unparalleled. His dissenting opinion in Priests for Life v. HHS, where he concluded that the Obama administration’s contraceptive mandate violated the rights of religious organizations, was called “pure perfection” by one of the lawyers challenging the mandate.

The allegations of the Federalist poster are baseless. They include an objection to Judge Kavanaugh’s concurring opinion in Newdow v. Roberts, which concluded that presidential inaugural prayers don’t violate the establishment clause. After grudgingly admitting that Judge Kavanaugh’s “analysis on the merits . . . seems fine,” the poster complains that he should have found that the plaintiffs, who had plans to attend the inauguration, lacked standing. But as 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.” To conclude otherwise, Judge Kavanaugh would have had to assume that every justice had “repeatedly overlooked a major standing problem and decided a plethora of highly controversial and divisive Establishment Clause cases unnecessarily and inappropriately.” That he was unwilling to do so shows only that he understood his role as a lower-court judge bound to follow Supreme Court precedent.

Next, the poster critiques Judge Kavanaugh’s Priests for Life dissent. The poster can’t deny that his dissent is a powerful defense of religious liberty, including the principle that courts can’t “second-guess[] the correctness or the reasonableness” of a plaintiff’s sincere religious beliefs. The poster’s only complaint is that Judge Kavanaugh acknowledged that a majority of the Supreme Court (Justice Kennedy plus the four dissenters in Hobby Lobby v. Burwell) had “strongly suggested” that the government had a compelling interest in facilitating women’s access to contraception. Judge Kavanaugh was right: In his concurring opinion in Hobby Lobby, Justice Kennedy went out of his way to signal that he thought the government had a “legitimate and compelling interest.” By affording appropriate respect to Justice Kennedy’s view on that issue and explaining why the Obama administration’s policy still violated the Religious Freedom Restoration Act, Judge Kavanaugh likely helped win Justice Kennedy’s vote to overturn the decision of the D.C. Circuit Court.

The poster’s criticism of Judge Kavanaugh for joining the majority opinion by Judge Janice Rogers Brown (a respected conservative judge and a fierce defender of religious liberty) in Mahoney v. Doe is equally off base. The court in Mahoney never said that sidewalk chalking wasn’t “sufficiently central” to the plaintiff’s “religion to be protected by” RFRA, and Judge Kavanaugh emphasized in Priests for Life that “RFRA protects ‘any exercise of religion, whether or not compelled by, or central to, a system of religious belief.’” The plaintiff in Mahoney couldn’t prevail, even under that protective standard, because chalking the sidewalk in front of the White House was “only ‘one of a multitude of means’ of conveying [his] religious message.” Even more surprising is the poster’s disagreement with Judge Kavanaugh’s concurring — and, one would have thought, uncontroversial — observation that “no one has a First Amendment right to deface government property. . . . for example, to spray-paint the Washington Monument or smash the windows of a police car.” The poster’s objection that “if the government creates a government forum wherein sidewalk chalking is permitted, then people do have a right to ‘deface’ that property” is downright silly; obviously, chalking in an area designated for that purpose wouldn’t be “defacement” at all.

In the end, the only support on offer for the outrageous charge that Judge Kavanaugh ‘doesn’t really care’ about religious liberty is petty flyspecking.

Finally, the poster drastically mischaracterizes the majority opinion in Kaemmerling v. Lapin, written by the highly respected conservative Judge David Sentelle. As the opinion makes clear, the plaintiff’s problem in that case was that his lawyer conceded that he had no “objection to the [Bureau of Prisons] collecting any bodily specimen that contains DNA material.” By limiting his challenge to the government’s subsequent extraction of DNA from the specimen, the plaintiff ran smack into Supreme Court precedent foreclosing claims that a plaintiff’s religion is burdened by the government’s internal practices. Importantly, the plaintiff waived any claim that the act of providing a tissue sample violated his religious beliefs because (for example) it made him complicit in wrongful conduct. Judge Kavanaugh can hardly be faulted for evaluating the claim the plaintiff chose to bring. And nothing in Kaemmerling remotely suggests that “only people whose religious beliefs aren’t strong enough that they would be willing to forgo them to avoid criminal penalty get religious protection.”

In the end, the only support on offer for the outrageous charge that Judge Kavanaugh “doesn’t really care” about religious liberty is petty flyspecking, as the anonymous poster seeks to find fault even with the judge’s strongest opinions in defense of religious freedom. No one should be swayed by such baseless criticisms, which are so absurd that no one was willing to put his or her name on them.

Justin Walker is an assistant professor at the University of Louisville Brandeis School of Law. He clerked for Justice Anthony Kennedy and Judge Brett Kavanaugh.


The Latest