Few political and cultural issues are more contentious today — and up for debate in the courts — than those touching on religion.
From his position on the D.C. Circuit Court of Appeals, Judge Brett M. Kavanaugh, President Trump’s nominee to the Supreme Court, has staked out positions that are sympathetic to Christians seeking such exemptions. He has also written a dissenting opinion that gives broad latitude to government bodies to express Christian sentiments — embracing a rule that would make it difficult to challenge public prayer by officials or displays of religious icons like the Ten Commandments on public property.
All in all, it’s clear that Kavanaugh, if confirmed, would advocate for broad religious exemptions to general laws and also weaken the establishment clause as understood in Supreme Court precedent.
Justice Anthony M. Kennedy, whom Kavanaugh would replace on the high court, also tended to vote with the court’s conservative bloc on these issues. But Kavanaugh has gone out of his way to write opinions on these subjects and could potentially become a leading voice on the court on such issues. At the least, he would provide intellectual support for the court’s rightward push on religious questions. Senators should understand the stakes of the decision confronting them; there is little ambiguity about Kavanaugh’s views on these issues.
First, consider Kavanaugh’s thoughts on religious exemptions to general laws — a contentious issue for several years. In key lawsuits centered on the Affordable Care Act, religious actors objected to the federal government’s decision to implement the law by requiring employers that provided health insurance to include coverage for female contraception without additional cost. This “contraception mandate,” however, always exempted religious nonprofits. The Obama administration decided that such groups could file a form affirming that they had a religious objection to providing contraceptive coverage. Government officials would then release the organization from that obligation, contact the insurer, and require it to provide the coverage to employees free.
However, the nonprofits were dissatisfied with this arrangement, and they sued, claiming that the mere requirement to file the form made them complicit in the provision of contraception coverage, thereby violating the federal Religious Freedom Restoration Act.
Eight out of nine circuit courts to consider this argument rejected it. These courts all concluded, as then-Judge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit put it, that “[i]t is federal law, rather than the religious organization’s signing and mailing the form, that requires health-care insurers . . . to cover contraceptive services.” Signing the form didn’t trigger contraception coverage; the government provided that independently.
In Priests for Life v. HHS, the D.C. Circuit Court of Appeals, on which Kavanaugh sits, agreed. It held that the government’s means of dealing with religious objections to contraception imposed no substantial burden on Priests for Life, an antiabortion nonprofit.
Kavanaugh dissented, citing the Supreme Court’s opinion in Burwell v. Hobby Lobby, which famously exempted a business corporation from the contraception mandate. (Corporations, unlike nonprofits, had not been exempted from the original mandate.) In that case, the Supreme Court deferred to the corporate officers’ belief that providing contraception coverage violated their religious convictions. Kavanaugh went a step further and said judges must therefore also defer to employers' belief that filing the religious-exemption form caused employees to receive contraception coverage.
The problem with this view is that it would require courts to defer to mistaken beliefs about how government programs operate, which is a very different thing from deferring to strongly held religious convictions about moral matters. Explaining the view of the D.C. Circuit, Judge Cornelia T.L. Pillard wrote: “The regulation challenged in this case does not, as a matter of law or fact, give [Priests for Life’s] conduct the contraception-facilitating effect of which they complain. Indeed, . . . the whole point of the challenged regulation is to scrupulously shield objecting religious nonprofits from any role in making contraception available to women.”
Allowing religious organizations to dictate how courts understand government policy would push the holding of Hobby Lobby well beyond what the Supreme Court envisioned. (Although the Supreme Court agreed to hear the nonprofit cases under the name Zubik v. Burwell, it ended up ducking the central questions, sending the litigants back to the lower courts with instructions to find a mutually agreeable solution.)
Explaining this dissent to senators on Thursday, Kavanaugh said: “The government had ways to ensure contraceptive coverage without doing so on the backs of religious objectors.” But that was exactly what the original accommodation accomplished, according to Kavanaugh’s own court and seven other circuits.
Turn now to Kavanaugh’s expressed views on the establishment clause, which puts limits on the degree to which government can embrace any one religious group, or embrace religion in general. Kavanaugh’s opinions would allow government expression that is unambiguously sectarian. Indeed, it’s hard to imagine many government endorsements of religion he would strike down.
Here’s the context for Kavanaugh’s most significant establishment clause opinion: After President Barack Obama’s inauguration in 2009, the atheist activist Michael Newdow challenged certain religious elements of the ceremony, including use of the phrase “so help me God” in the presidential oath. In Newdow v. Roberts, the D.C. Circuit rejected the challenge on the ground that Newdow did not have standing to sue (for highly technical reasons). Kavanaugh concurred in the judgment only — he concluded that Newdow did have standing, but that the words of the oath, and other religious trappings of the ceremony, such as opening prayers by clergy, did not violate the establishment clause.
Kavanaugh’s conclusion, striking though it was, was less consequential than his reasoning. He began by selecting a curious precedent as his guide: Marsh v. Chambers, in which the Supreme Court upheld a legislative prayer practice in Nebraska. He chose that case even though a presidential oath is very different from an invocation that opens a legislative session: Far more than a ceremonial introduction, it is a performative utterance that is required by the Constitution and therefore has a legal function. (The phrase “so help me God” is not in the constitutional oath; it was added at the request of the incoming president.)
Under the rule of Marsh, as interpreted by Kavanaugh, religious utterances by the government are allowable so long as they are rooted in tradition and “are not proselytizing . . . or otherwise exploitative,” in Kavanaugh’s words. That’s a remarkably low standard for the government to meet. On that understanding of the establishment clause, government expressions of religion would be constitutionally permissible if they endorsed particular religious ideas, unless they “aggressively advocated a specific religious creed.”
Kavanaugh notably neglected other rules that the Supreme Court had established. The “endorsement test,” for instance, prohibits any official utterance that embraces a particular faith. Justice Sandra Day O’Connor developed this test, which the court then adopted, to guard against government favoritism that disadvantages citizens who adhere to other faiths or no faith.
Kavanaugh not only ignored the endorsement test with respect to religion in general, but he also concluded that even sectarian expressions — ones that endorse beliefs associated with particular religions — are permissible so long as they neither proselytize nor denigrate other faiths. He wrote, “the Establishment Clause does not ban any and all sectarian references in prayers at public ceremonies.” That argument reached beyond settled law, although something like it was later adopted when the Supreme Court took another rightward turn on legislative prayer in Town of Greece v. Galloway.
The Supreme Court has struck down sectarian symbols like a holiday creche or the Ten Commandments if they are unaccompanied by other religious and nonreligious symbols. But under Kavanaugh’s logic, the creche could pass muster. So might a Latin cross atop a town hall. Neither display would necessarily proselytize or disparage members of other faiths.
Such logic might even justify the actual establishment of a religion: After all, the Church of England in Great Britain avoids proselytizing or disparaging other faiths.
Collectively, Kavanaugh’s written opinions suggest that he would provide reliable support on the Supreme Court for judgments that exempt religious actors from government regulations, and that allow endorsement of religion by government.
Senators who are voting on his confirmation — all citizens, in fact — should understand that Kavanaugh would push the law further in the direction of special privilege for religious citizens, as opposed to a simple guarantee of full and equal citizenship for everyone.