The views that Justice Kavanaugh has expressed in two recent decisions by the Supreme Court to deny review of lower-court decisions indicate that he is ready to make his mark on religious liberty. Whether there will be a majority for his views is less clear.
Yesterday, Kavanaugh, joined by Justice Alito and Justice Gorsuch, issued a five-page statement respecting the denial of certiorari in Morris County v. Freedom From Religion Foundation. In that case, the New Jersey supreme court interpreted New Jersey law to forbid Morris County from including religious buildings in its program of funding the preservation of historic buildings. Kavanaugh explains that the New Jersey supreme court’s conclusion that the exclusion of religious buildings did not violate the Free Exercise Clause and the Equal Protection Clause “is in serious tension with this Court’s religious equality precedents.” He concludes:
In my view, prohibiting historic preservation grants to religious organizations simply because the organizations are religious would raise serious questions under this Court’s precedents and the Constitution’s fundamental guarantee of equality.
Six weeks ago, Kavanaugh joined Alito’s statement respecting the denial of certiorari in Kennedy v. Bremerton School District (as did Justices Thomas and Gorsuch). In that statement, Alito found “troubling” the Ninth Circuit’s “understanding of the free speech rights of public school teachers” and said that the Court’s correction of that understanding might well be needed. More momentously, he criticized the Court’s 1990 decision in Employment Division v. Smith (majority opinion by Justice Scalia) for “drastically cut[ting] back on the protection provided by the Free Exercise Clause” and the Court’s 1977 decision in Trans World Airlines, Inc. v. Hardison for giving minimal protection under Title VII to workers facing discrimination on the basis of religion. Alito’s observation that the certiorari petitioner did not ask the Court “to revisit those decisions” will surely be read by future petitioners as an invitation to make that request.