Some supporters of Judge Brett Kavanaugh’s nomination to the Supreme Court praise him as a warrior for religious liberty. They cite, e.g., his written opinions on contraception and public prayer, as well as his earlier private lawyer amicus briefs for school prayer and religion.

Kavanaugh does match the Court’s current pro-religion stance, as a majority of the justices have voted for government prayer, government funding of religion, and approved religious opposition to contraception and same-sex marriage.

Those rulings are pro-religion. Kavanaugh’s opponents warn that the judge is not a separationist, and therefore not for religious freedom. Separationist arguments have been losing on the Court for some time now, and we can expect Kavanaugh to contribute to that anti-separationist trend.

In the long run, it is important for Americans to remember that pro-religion votes like Kavanaugh’s are not always good for religious freedom.

The Supreme Court’s Legacy

The Court traditionally wrote opinions that did not automatically allow religion to win. Justice Antonin Scalia wrote the brilliant, and controversial, 1990 decision, Employment Division v. Smith. The opinion rejected a Free Exercise challenge to drug laws, concluding that everyone must follow “neutral laws of general applicability.”

People who understand religious freedom applauded that smart rule. It reflected religion’s history of blocking constitutional rights like racial, gender, and LGBTQ equality. The Constitution was drafted by people who understood that religion sometimes affirms legal rights and sometimes opposes them. For that reason, they developed a non-religious government that could protect everyone’s rights.

Congress was more critical of Smith. It drafted the 1993 Religious Freedom Restoration Act (RFRA), which rejected Smith. Instead, RFRA held, “government shall not substantially burden a person’s exercise of religion [unless it] is in furtherance of a compelling governmental interest; and is the least restrictive means of furthering that compelling governmental interest.” Although the Supreme Court ruled shortly thereafter in City of Boerne v. Flores that RFRA could not be applied to the states, it still binds the federal government. And 21 states have passed their own RFRAs. Now plaintiffs can use RFRA instead of the Free Exercise Clause to win a religious freedom claim.

Moreover, in the past, the Court used separationist reasoning to block government prayer, limit religious public monuments, and stop funding to religious institutions. Gradually, however, some justices started to see separation of church and state as negative discrimination against religion. In the recent Trinity Lutheran Church of Columbia v. Comer case, a 7–2 Court ruled that blocking state funding to a church violated the Free Exercise Clause. Only dissenting Justices Sonia Sotomayor and Ruth Bader Ginsburg concluded that “[t]his Court has repeatedly warned that funding of exactly this kind—payments from the government to a house of worship—would cross the line drawn by the Establishment Clause.”

The Court seems ready to keep crossing the Establishment Clause line. The Establishment Clause is changing, and RFRA is strong. A Justice Kavanaugh vote should keep the Court going in the pro-religion direction it has already been going. In the long run, however, we need to learn that such votes will not support real religious freedom for everyone in the country.

Kavanaugh’s Legacy

Contraception

Unlike Smith, RFRA gave ammunition to religious critics of the Affordable Care Act. Under Smith, everyone would have to obey the law. With the statute on the books, however, the critics insisted that the Act’s contraceptive insurance requirement violated their RFRA rights.

A majority of the Supreme Court backed them on that issue. First, in Burwell v. Hobby Lobby, the Supreme Court held 5–4 that corporate employers did not have to provide the insurance to their employees. Then the nonprofits went to court to get a similar, pro-religion, ruling.

Judge Nina Pillard wrote a smart opinion on that subject for a panel of the DC Circuit. She dismissed the idea that the priests had suffered a substantial burden under RFRA. She rejected their argument that sending a form to their insurance company or the government triggered insurance coverage of the disapproved contraceptives. Instead, she wrote, the law caused the coverage and should be enforced.

Judge Kavanaugh then dissented from the court’s denial to rehear the case en banc. He argued that Hobby Lobby does not allow courts to consider whether religious arguments are flawed. His dissent set up a precedent of deference to whatever the religious belief is. Moreover, once substantial burden is met, RFRA sets up the stringent, hard, least-restrictive means test, which is very difficult for the government to win, and which it lost in Kavanaugh’s dissent.

The DC Circuit case went to the Supreme Court, along with those of other circuits. A Court without Justice Scalia issued a short opinion in Zubik v. Burwell, suggesting that the parties could reach a settlement of the issues. In October 2017, the Trump administration released rules saying not only that employers did not have to provide the insurance, but also that they did not have to file any information with the government about their coverage. They only had to tell their employees about their decision. So Kavanaugh’s view is getting a lot of positive support from the Court and the president.

Prayer

In another DC Circuit case, Newdow v. Roberts, plaintiffs challenged the presidential inaugural prayers and the “so help me God” part of the presidential oath as a violation of the Establishment Clause. The panel ruled that plaintiffs did not have standing and that the case was moot.

In contrast, Kavanaugh’s concurrence states he would have found standing and would have ruled that the plaintiffs’ argument failed on the merits. He relied extensively on Marsh v. Chambers, a Supreme Court case about legislative prayer. According to Marsh, Kavanaugh wrote, these prayer practices were constitutional.

Marsh was expanded in the Supreme Court’s 2014, 5–4 case, Town of Greece v. Galloway, which upheld legislative prayer that was almost exclusively Christian. The justices disagreed whether such public prayer was universal (majority) or discriminatory (dissent). The majority stuck with Marsh, leaving us with a pro-religion government prayer jurisprudence.

Kavanaugh’s pre-judge briefs were pro-public religion. He was for public student prayer at football games in Santa Fe Independent School District v. Doe, and pro-religious groups meeting on school grounds in Good News Club v. Milford Central School. He lost in Santa Fe in 2000 but won in Good News in 2001, with the difference being that he gained Justice Anthony Kennedy’s vote in Good News Club, but not in Santa Fe.

With Kennedy’s departure from the Court, only Justices Ginsburg and Breyer remain from the Santa Fe majority and only Justice Clarence Thomas from the dissent. Who knows where the prayer cases could go post-Kennedy and post-Town of Greece? Toward prayer, we would expect, with the vote of Justice Kavanaugh.

Where Is He on the Bus Case?

Recently two DC Circuit judges, Judith Rogers and Robert Wilkins, upheld in Archdiocese of Washington v. Washington Metropolitan Transit Authority the Transit Authority’s bus regulations, which “closed its advertising space to issue-oriented ads, including political, religious, and advocacy ads.” The regulations were challenged by the Washington Archdiocese, which wanted to post an ad with a biblical Christmas scene and a link to a Catholic website. The ad had the message “Find the Perfect Gift.” Judges Rogers and Wilkins wrote separate opinions, both upholding the bus regulations as consistent with Supreme Court precedent.

A footnote to the opinion says “Circuit Judge Kavanaugh was a member of the panel at the time the case was argued but did not participate in this opinion.” At the time of the oral argument, the Washington Post described Kavanaugh as “unrelenting in questioning Metro’s lawyer.” Kavanaugh also “stated unequivocally his view that the policy is ‘pure discrimination’ in violation of the First Amendment.” Yet again, Kavanaugh appears to be a pro-religion voter, and he would carry those opinions to the Court.

The Issue of Religious Freedom

Many people think the pro-religion trend on the Court, which is shared by Judge Kavanaugh, is positive. But consider what that trend has given us:

These cases should remind us that churches and states are supposed to have separate jobs. That is why the Constitution contains a Free Exercise Clause and an Establishment Clause. The government is supposed to protect legal rights, even when the churches are not interested in them. Instead, a pro-religion Court gives religions wide freedom to oppose people’s constitutional rights. The churches wind up setting laws that protect a few of their people, but not everyone else.

The Court is supposed to be pro-religious freedom, which does not mean religions get to make the laws or exempt themselves from them. One day, we hope to get a president and a Court who will make sure everyone’s constitutional rights are protected. It is not religious freedom to block the rights of certain individuals while protecting the rights of others.