Last month, Justice Brett Kavanaugh sat down for a conversation at the Catholic University’s Columbus School of Law. Of particular note was the importance he placed on recent improvements in religious-liberty jurisprudence:
So I think that’s one area in the six years I’ve been on the Court that I think we’ve made in my view correct important strides. And I think one of the principles that’s been reinforced and elaborated on is that discrimination against religion — against religious people, against religious speech, against religious organizations — is not required by the Establishment Clause and indeed is prohibited by the Free Exercise Clause and the Equal Protection Clause. And so in cases like Trinity Lutheran, Espinoza, Shurtleff, Carson, there would be government programs where religious groups or religious people or religious speech would be left out, often because local officials, state officials, would think, . . . let’s make it concrete: We have an open gym policy at the public school. Anyone can use it after hours. Oh, but a religious group wants to use it. We can’t allow that because that would be an Establishment Clause violation. And we’ve made clear, I believe, in these cases and others, that no, that’s wrong, that is discrimination against the religious group, the religious person, the religious speech, and that is not required by the Establishment Clause. That’s a misreading of our history and tradition, and that’s not required by the Establishment Clause.
We now have ample evidence that even nonconservative lower-court judges are getting the message. On Monday, a panel on the Ninth Circuit Court of Appeals handed down its opinion in Loffman v. California Department of Education, a case I wrote about in May. Here’s the context:
The Individuals with Disabilities Education Act, passed by Congress in 1990, gives funding to individual states to provide special-education programs in public schools but allows that funding to be directed to private schools when public schools cannot meet the needs of a particular child. California, however, felt that it was of particular importance to exclude religious private schools from that eligibility. The consequence is that parents like Chaya and Yoni Loffman are forced to choose between providing fully for their disabled son’s special needs or giving him the religious education central to their Jewish faith. It’s a dichotomy that could easily disappear with minimal cost — one is tempted to say with absolutely no cost — to the public. Yet California is, for some reason, intent on making sure that the only children who don’t have access to educational resources to deal with special needs are religious ones.
The Ninth Circuit panel, composed of judges nominated by Clinton, Obama, and Trump, unanimously ruled on the merits that such a program is unconstitutional. Commenting on a 2017 Supreme Court decision in Trinity Lutheran Church of Columbia, Inc. v. Comer, the panel noted:
The Court’s interpretation of the Free Exercise Clause in these recent cases compels the same conclusion with regard to the burden analysis here. Just as Trinity Lutheran Church was put to the choice of participating in Missouri’s playground resurfacing program or retaining its religious affiliation, see Trinity Lutheran, 582 U.S. at 462, any religiously affiliated school seeking to enter into an NPS contract in California must choose whether to maintain its religious affiliation or to serve as an NPS eligible for consideration by the LEA in determining whether it may be in the best position to provide an IEP for an individual child. Religious entities that are equally or better qualified than secular ones to provide special education and related services are disqualified solely because they are “owned, operated, controlled by, or formally affiliated with a religious group or sect, whatever might be the actual character of the education program or the primary purpose of the facility.” Cal. Code. Regs. tit. 5, § 3001(p). As a result, families like the Parent Plaintiffs who would otherwise advocate for placement in religiously affiliated NPSs are unable to do so—solely because of the would-be NPSs’ religious affiliation. As we have previously recognized, a statutory scheme that requires a family to “forgo a sectarian education . . . in order to receive” special education benefits otherwise available in a private school setting imposes a “burden on their free exercise rights.”
The fact that a liberal panel on a liberal circuit unanimously reached this conclusion proves that Justice Kavanaugh was right. There is more work to be done, but the recent advances in religious-liberty jurisprudence spearheaded by the Supreme Court are important wins for legal originalists and religious citizens alike.