During his Supreme Court confirmation hearings, Brett M. Kavanaugh has said repeatedly that he cannot reveal his views on legal cases that might come before him as a justice. Yet on religious liberty — the issue at the center of conservative Christian support for President Trump — Kavanaugh this week sent several signals that he is on the same page as the president’s most loyal base.
Kavanaugh’s alleged emphasis on religious liberty is a political wet kiss for Trump. It shows Trump’s base that they were right in voting for him, even as the White House is embroiled in multiple unfolding scandals without precedent in American history.
Sen. Ted Cruz (R-Tex.) tied it all together at his opening statement at Kavanaugh’s confirmation hearings on Tuesday, saying what’s at stake in the 2016 election was Republicans’ desire for “justices who will uphold fundamental liberties like free speech, like religious liberty, like the Second Amendment,” while Democrats “want justices that will further that assault on religious liberty.”
Standing for religious liberty means standing for Trump and now for Kavanaugh.
At some points in hearings this week, Republican senators seemed to ask questions or in some cases, just make statements — that opened the door for Kavanaugh either to indicate his agreement or to engage in platitudes about the role of religion in American public life.
Sen. John Cornyn (R-Tex.) brought up a 2000 Supreme Court case, Santa Fe Independent School District v. Doe, which he had litigated as Texas attorney general, and in which Kavanaugh, then in private practice, had filed an amicus brief. At issue was whether student-led prayers at public high school football games were an unconstitutional government establishment of religion. In his brief, Kavanaugh had argued the prayers did not violate the establishment clause; the court ruled that they did.
“I’m not asking for your opinion since likely you’ll be called upon to decide cases involving the establishment clause in the future,” Cornyn said to Kavanaugh, even though he was nonetheless giving the nominee the chance to make his opinion perfectly clear. The 18-year-old case, the senator complained, “still sticks in my craw.” He expressed agreement with then-Chief Justice William H. Rehnquist’s dissent, which argued that the majority opinion “bristles with hostility to all things religious in public life.”
Kavanaugh, acknowledging that cases he’s lost “still stick in my craw, too,” went on to soothe Cornyn’s concerns about the high court’s hostility to religion. He cited more recent cases, involving the use of public school facilities for an after-school Bible club, legislative prayer and public financing of religious facilities, as evidence that the court had become, perhaps, less hostile to religion — a trend that he implied he would continue should he be confirmed.
Kavanaugh would not opine on prospective cases, but he made clear his approval of rulings in which the court declined to find establishment clause violations, noting several times that religious organizations should be free from “discrimination.” He cited, for example, a seminal 2001 case, Good News Club v. Milford Central Schools, in which the court found it was “viewpoint discrimination” for a public school to refuse to allow an after-school religious club to use its facilities.
Although it did not become the subject of questioning during the hearing, Kavanaugh’s past writings characterize other government policies as “discrimination” against religious groups. An email from Kavanaugh’s tenure in the George W. Bush White House, released Thursday by Sen. Cory Booker (D-N.J.), showed Kavanaugh dismayed that lawmakers had changed the language in proposed legislation for the faith-based initiative to bar direct government funding of religious organizations’ religious activities.
As Melissa Rogers, who served as the director of President Barack Obama’s Office of Faith-Based and Neighborhood Partnerships, noted Thursday on Twitter, Kavanaugh’s email “makes it pretty clear he’d say [government] discriminates against [organizations] when it prohibits them from using direct aid for explicitly [religious] activities (like prayer, worship and study of sacred texts), so long as [the] aid program has [a] secular purpose,” such as drug rehabilitation. Current law, Rogers wrote, prohibits organizations “from subsidizing explicitly religious activities with direct [government] aid, but Kavanaugh appears to disagree.”
Kavanaugh’s views that religious people or organizations experience discrimination could also play a role in cases that could arise out of new policies, enacted by the Trump administration, that create legal mechanisms for conservatives to raise conscience objections to, for example, laws protecting LGBT or reproductive rights.
In July, the Justice Department launched a Religious Liberty Task Force, denounced by civil liberties advocates as an unconstitutional union of religion and government, creating a license for discrimination against LGBT people. Earlier this year the Department of Health and Human Services created a Conscience and Religious Freedom Division within its Office of Civil Rights, which may well try to deprive states of health-care-related federal funding for infringements on what the agency determines to be the conscience rights of citizens who oppose abortion.
Judges friendly to legal theories defending these policies — that a religious objector’s conscience should be given precedence over someone else’s civil or constitutional rights — could eventually uphold regulations, policies, or actions this administration has taken in the name of beating back supposed hostility to religion. The high court has recently decided two cases, Hobby Lobby Stores v. Burwell, and Masterpiece Cakeshop v. Colorado Civil Rights Commission, which together demonstrate a willingness to create religious exemptions to the supposedly hostile actions government officials take against religious people.
Kavanaugh made his sympathetic views to these kinds of conscience protections clear. When Cruz presented him an open-ended opportunity to discuss religious liberty, the nominee noted, “the principle of religious liberties [was] written right into the First Amendment to the Constitution and the Framers understood the importance of protecting conscience.”
When the Justice Department launched its Religious Liberty Task Force in July, Attorney General Jeff Sessions portrayed the administration as a defender against “a dangerous movement, undetected by many,” which is “challenging and eroding our great tradition of religious freedom.” That “dangerous movement,” Sessions warned, “must be confronted and defeated.” The last election, Sessions went on, “and much that has flowed from it, gives us a rare opportunity to arrest these trends.” Kavanaugh’s exchanges with Republican senators on religious liberty issues leave little doubt: Republicans have no intention of squandering that opportunity.
Sarah Posner is a reporting fellow at the Investigative Fund at the Nation Institute.