Kavanaugh Comes Out Strong for Religious Liberty in Comment

Statement on cert denial might presage bigger SCOTUS fight

Justice Brett Kavanaugh / Getty Images
March 4, 2019

Newly minted Supreme Court justice Brett Kavanaugh issued a comment Monday signaling his commitment to the court's pro-religious-liberty jurisprudence, a move that may signal his views on a major religion case likely to be decided later this term.

The court declined to hear two related casesMorris County v. Freedom from Religion Foundation and The Presbyterian Church in Morristown v. Freedom from Religion Foundation—on Monday, both of which related to whether or not Morris County, N.J., could disburse funds for historical preservation to religious institutions. New Jersey state law appeared to prohibit giving public funds in this way to a religious body, but both the county and the church argued that this violated the First and 14th Amendments' prohibition on religious discrimination by states.

Kavanaugh agreed with the court's decision to decline to hear the case, noting that factual uncertainty and the recency of his colleagues' decision in Trinity Lutheran meant that neither the time nor the case was right for consideration. However, in a statement regarding the denial of certiorari, Kavanaugh and colleagues Justices Alito and Gorsuch made clear that they thought the general principle of religious non-discrimination was a well-supported and important one.

"The New Jersey Supreme Court concluded that the State's discrimination [in blocking funding] did not violate the First and Fourteenth Amendments," Kavanaugh wrote. "In my view, the decision of the New Jersey Supreme Court is in serious tension with this Court's religious equality precedents."

Kavanaugh traces this basic principle—that churches cannot be treated differently simply by dint of religious affiliation—to a bevy of cases on everything from prohibiting ministers from serving as delegates to a constitutional convention, to a New York school district that sought to deny a religious group use of a public high school, to the recent religious liberty win in Trinity Lutheran v. Comer, in which the court found that a Lutheran church could not be excluded from receiving public funding for refurbishing its playground.

"As this Court has repeatedly held, governmental discrimination against religion—in particular, discrimination against religious persons, religious organizations, and religious speech—violates the Free Exercise Clause and the Equal Protection Clause," he wrote.

Kavanaugh and colleagues' support for the refusal to hear Morristown means that these issues will not come back before the Supreme Court today. However, they do signal that the new justice wants to stake out a role as a defender of religious liberty and non-discrimination—almost certainly a predisposition which recommended him to President Donald Trump when he first nominated the now-confirmed justice.

This fact may be of particular interest not only to court watchers, but for those concerned about the outcome of one case argued earlier this term: American Legion v. American Humanist Association. American Legion concerns the Bladensburg Peace Cross, a giant cross which serves as a memorial to the fallen of World War I. The AHA has sought to have the cross removed, citing the First Amendment's establishment clause.

The Court heard oral arguments in American Legion last week, during which Kavanaugh and his conservative colleagues seemed to be pushing to ensure that crosses and other religious symbols are not mandatorily removed from public life. The court may not issue an opinion on that case before the summer.