Brett Kavanaugh praises US Supreme Court’s role defending religious freedom

Justice Brett Kavanaugh has praised recent court decisions by the Supreme Court that have protected religious liberty and stopped discrimination against religious organisations in the United States. 

Kavanaugh, who was nominated to the court by former President Donald Trump in 2018 and is one of six Catholic Justices (out of the court’s nine judges), said religious liberty is “one area in the six years I’ve been on the court that I think we’ve made – in my view – correct and important strides”, reports the Catholic News Agency (CNA).

His comments come ahead of the court’s newest term starting this week, and were made during a 26 September event hosted by the Center for the Constitution and the Catholic Intellectual Tradition (CIT) at The Catholic University of America’s Columbus School of Law.

Kavanaugh referenced four cases specifically: the 2017 Trinity Lutheran decision, the 2020 Espinoza decision, and in 2022 the Shurtleff decision and the Carson decision. All four cases dealt with government discrimination against religious institutions and tackled questions around the First Amendment, which guarantees freedom of expression, including religious ones.  

In the Trinity Lutheran, Espinoza and Carson decisions, the Supreme Court ruled that governments cannot deny public benefits or public money to religious organisations simply because they have a religious affiliation. As a result, school voucher programs and other government-funding programs available to secular organisations must also be available to religious ones, CNA notes.

The government entities that initially denied funds to the religious organisations claimed they did so because of the establishment clause of the First Amendment, which states the government cannot make laws “respecting an establishment of religion”. The government argued that it would be in violation of the clause if it provided those funds to religious organisations.

However, during The Catholic University of America event Kavanaugh said that the government’s interpretation was “a misreading of our history and tradition”, explaining that policies that outright exclude religious organisations are “unlawful” under both the First Amendment and the 14th Amendment, a cornerstone of American civil rights and equality that addresses citizenship, equal protection and due process.

In all three cases, the Supreme Court ruled that the government providing funds to the related religious organisations does not violate the establishment clause. The court found that offering funding programs to secular organisations but denying them to similar religious organisations amounted to discrimination that violated both the First Amendment protection to freely practice one’s religion and the 14th Amendment’s guarantee of equal protection under the law.

“I think one of the principles that’s been reinforced and elaborated on is that discrimination against religion, against religious people, against religious speech [and] against religious organisations, is not required by the establishment clause – and indeed is prohibited by the free exercise clause and the equal protection clause,” Kavanaugh said.

Similarly, in the Shurtleff case the Supreme Court ruled that the city of Boston discriminated against a Christian organisation by refusing to let it fly an ecumenical Christian flag at City Hall, even though the city allowed secular groups to fly various flags.

Kavanaugh said that in its rulings the court had “reinforced a critical principle of religious equality and religious liberty”, adding: “I feel very proud of that, for recognising the constitutional protection of religious equality and religious liberty.”

During the event, Kavanaugh also discussed his faith and the Catholic intellectual tradition.

He said the Catholic tradition “is reflected in several principles I try to think about daily”; he went on to give the example of Matthew 23:12, which states: “Whoever exalts himself will be humbled; but whoever humbles himself will be exalted.”

Kavanaugh said he thinks about this verse “to remember the importance of humility – that you don’t know it all; that you’re trying to learn from others”.

Regarding the Catholic intellectual tradition, Kavanaugh said: “I really think of the same kinds of principles,” giving the examples of “trying to listen to all sides to try to be open-minded, to try to listen and learn, and to have inquiry and dialogue”.

He added: “I think the Catholic intellectual tradition reflects this, which is inquiry and dialogue and listening and hearing different perspectives and having respectful back-and-forth, to always try to learn more and to understand more.

“So for me, the Catholic intellectual tradition builds on the Catholic experience and tradition more generally about being part of a broader community where you listen to others, help others, serve others, learn from others, and that’s how I think about it.”

The Supreme Court did not take up any religious liberty cases in its last term, but it could choose to hear various religious liberty cases in its upcoming term. And there are two cases the Justices could rule on that directly involve Catholic entities and could go a long way in either preserving or restricting religious freedom in the United States.

In Catholic Charities Bureau v. Wisconsin Labor and Industry Review Commission, a Wisconsin Catholic Charities branch is asking the court to confirm its status as a religious organisation so that it can receive a tax exemption.

Its a case that could have broad national implications. Catholic Charities in the Diocese of Superior petitioned the Supreme Court to overturn a state court decision that its activities aren’t primarily religious, which denied the organisation a religious exemption from paying into the State’s unemployment compensation program.

Regardless of how the Supreme Court rules on the case, it would have a significant impact on what activities qualify an organisation for a religious exemption. The work of Catholic Charities in the Diocese of Superior mirrors that of other Catholic Charities branches nationwide

And in Diocese of Albany v. Harris, a group of religious ministries including Anglican and Catholic nuns are looking for the nation’s high court to overturn a state mandate that they must cover abortion procedures in their health insurance plans.

While US Catholics may well agree with Kavanaugh that the Supreme Court has been helping to protect religious freedom, the Democratic Party has been increasing their calls for Supreme Court reform, including the court being expanded by increasing the number of Justices, and imposing term limits.

Those calls only increased after the current conservative majority ruled that former presidents, such as Donald Trump, have broad immunity from prosecution.

The potential for such reform means that the outcome of the November US presidential election could significantly influence the future of the Supreme Court and whether it retains its current formation, independence and vital constitutional role.

RELATED: Two potential Supreme Court cases with serious ramifications for US Catholics

Photo: The Supreme Court as composed 30 June 2022 to present: Associate Justice Brett M. Kavanaugh is second from right on back row, along with (left to right) Associate Justice Amy Coney Barrett, Associate Justice Neil M. Gorsuch and Associate Justice Ketanji Brown Jackson. Front row, left to right: Associate Justice Sonia Sotomayor, Associate Justice Clarence Thomas, Chief Justice John G. Roberts, Jr., Associate Justice Samuel A. Alito, Jr., and Associate Justice Elena Kagan. (Screenshot from supremecourt.gov; original image credit: Fred Schilling, Collection of the Supreme Court of the United States.)

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