Will Brett Kavanaugh defend Religious Liberty?
Religion & Liberty Online

Will Brett Kavanaugh defend Religious Liberty?

A few days ago, President Donald Trump named the Honorable Brett Kavanaugh as his nomination for the replacement of Supreme Court Judge Anthony Kennedy. Over the course of his 12-year tenure on the D.C. Circuit Court, Kavanaugh has stood in defense of religious liberty. Kavanaugh will prove to be the strict originalist that this country needs.  Several cases from the D.C. Circuit Court shed light on how Kavanaugh might conduct himself on the Supreme Court:

Newdow V. Roberts:

In 2009, several plaintiffs who identify as atheists were attending the inaugural address of President Barack Obama. They claimed that the public prayer and use of the phrase “so help me God” in the Presidential Inauguration was in violation of the establishment clause of the Constitution. The plaintiffs claimed psychological harm by having to listen to the invocation of God. Kavanaugh, in the majority opinion, held four points that uphold religious liberty and the dignity of the individual. The four points include:

  1. “In our constitutional tradition, all citizens are equally American, no matter what God they worship or if they worship no god at all”
  2. “We cannot gloss over or wish away the religious significance of the challenged Inaugural prayers”
  3. “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.”
  4. “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”

In his majority opinion, Kavanaugh concluded that neither government-sponsored prayer nor the invocation of “so help me God” in the Presidential Inauguration violate the establishment clause of the Constitution. Instead, these actions are protected under the free exercise clause and cannot be infringed on. Kavanaugh’s conclusion demonstrates principled support for religious freedom and for precedent. In his opinion, he draws upon the Marsh decision and historical context for evidence. Kavanaugh takes a prudential approach to justify his conclusion, displaying his reverence for history and the importance of judgments made before him.

Priests for Life v HHS:

In 2013, a Catholic pro-life organization lost a filed suit against the HHS for the enforcement of the contraceptive coverage mandate in the Affordable Care Act. Under the ACA, most employers had to provide insurance coverage, including contraceptives, to their employees or face a penalty. The Priests for Life claimed that the religious exemption was not sufficient and that, by submitting an exemption form, they were complicit in providing contraceptive coverage, violating their religious convictions. Kavanaugh, inhis dissenting opinion, stated that the mandate “substantially burden[s] 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.” Kavanaugh’s support of the Priests for Life echoes his belief of the importance of religious freedom for all individuals. As a member of the Supreme Court, Kavanaugh would continue to uphold the 1st Amendment and the defense of individual conscience.

Originalism is the theory that “constitutional text ought to be given the original public meaning that it would have had at the time that it became law.” Placing major emphasis on history and the role of prudence in decision making, originalists tend to be conservative appointees. Kavanaugh is by definition an originalist. If confirmed, his prudential and principled judgement will be felt for years to come. Kavanaugh’s nomination to the highest court should give any advocate of religious freedom hope.


Photo source: White House photo by Eric Draper [Public domain], via Wikimedia Commons




Marcos Mullin

is an intern and a part of the Emerging Leaders Program at Acton. He is currently pursuing a degree in Economics and Public Administration at the University of Texas-San Antonio.