Bench Memos

Law & the Courts

Judge Kavanaugh’s Record on Religious Liberty

1. In his opinion concurring in the judgment in Newdow v. Roberts (2010), Judge Kavanaugh rejected an Establishment Clause challenge to the prayers at the presidential inauguration and to the inclusion of “so help me God” in the official presidential oath. (The two judges in the majority, both Republican appointees, did not reach the merits.)

Kavanaugh’s opinion sets forth several important principles at the start:

“In our constitutional tradition, all citizens are equally American, no matter what God they worship or if they worship no god at all.”

“We cannot gloss over or wish away the religious significance of the challenged Inaugural prayers.”

“We cannot resolve this case by discounting the sense of anguish and outrage plaintiffs and some other Americans feel at listening to a government-sponsored religious prayer.”

“We likewise 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.”

He then combines a thorough inquiry into the historical record with Supreme Court precedent on non-proselytizing prayers to conclude that the challenged practices are permissible.

2. In Priests for Life v. HHS (2015), Judge Kavanaugh vigorously dissented from the D.C. Circuit’s denial of en banc review of a panel decision that ruled against a religious-liberty challenge to the HHS contraceptive mandate. Kavanaugh argued that the panel opinion “misapplies the Religious Freedom Restoration Act and contradicts the Supreme Court’s recent decisions” in Hobby Lobby and related cases.

Kavanaugh soundly determined that the HHS mandate regulations “substantially burden the religious organizations’ exercise of religion because the regulations require the organizations to take an action contrary to their sincere religious beliefs (submitting the form) or else pay significant monetary penalties.” He also found that “requiring the religious organizations to submit this form is not the Government’s least restrictive means of furthering its interest in facilitating access to contraception for the organizations’ employees.”

Notwithstanding all this, Kavanaugh has been harshly criticized by some folks for stating that “Hobby Lobby strongly suggests that the Government has a compelling interest in facilitating access to contraception for the employees of these religious organizations.” I find this criticism curious. What constitutes a compelling interest is, as Kavanaugh’s opinion makes clear, a difficult and often “question-begging” matter in the abstract. But does anyone dispute Kavanaugh’s reading of the position of Justice Kennedy and of the four Hobby Lobby dissenters on this question? Does anyone think that his dissent would have been more likely to turn into a Supreme Court majority if it had rested on there being no compelling interest?

To be sure, some critics particularly object to Kavanaugh’s account of why “it is not difficult to comprehend” why those five justices “would suggest that the Government has a compelling interest in facilitating women’s access to contraception.” But Kavanaugh is deftly summarizing their position, not embracing it himself. I will add that religious conservatives ought to recognize that in a collapsed sexual culture it is undeniable that the “large number of unintended pregnancies causes significant social and economic costs,” including that “about 40% of all unintended pregnancies end in abortion.” The religious-liberty argument against the HHS contraceptive mandate is not an argument against government-sponsored contraception; it is an argument against dragooning objecting religious believers to be agents of the state in that project.

Addendum (3 p.m.): Kelly Shackelford, the president and CEO of First Liberty Institute, has sent me this email:

Brett Kavanaugh also volunteered his time almost 20 years ago to work on a religious liberty case at the US Supreme Court with me and Jay Sekulow. He has been committed to the Constitution and religious liberty for a long time.

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