Before announcing his selection of Brett Kavanaugh, judge of the US Court of Appeals for the District of Columbia Circuit, to fill the vacancy left by Supreme Court Justice Anthony Kennedy’s retirement, President Donald Trump acknowledged the presence of—and implicitly the imprimatur of—Maureen Scalia, widow of the late, revered Supreme Court justice, and former attorney general Edwin Meese, a Christian-right hero on religious liberty. Although the Christian right had been pressing him to nominate Seventh Circuit Judge Amy Coney Barrett, Trump was signaling to this base that Kavanaugh is kosher on matters of religious freedom—and that they should support his nomination.
Although overshadowed by abortion and LGBTQ rights, the Christian right’s conception of “religious freedom” is just as much a conservative litmus test for judicial nominees as opposition to Roe v. Wade. In recent years, a majority on the Supreme Court has sided with religious actors who claim that the Free Exercise Clause and Religious Freedom Restoration Act constrain government efforts to protect the rights of citizens. In 2014, the Court agreed with Hobby Lobby, allowing the corporation to cite religious beliefs in exempting itself from parts of the Affordable Care Act. And this year, the Court sided with Masterpiece Cakeshop, ruling that a Christian baker did not violate civil-rights law when he denied service to a same-sex couple.
Trump had promised this base a Supreme Court justice who would protect religious liberty. But the instant reaction of several religious-right powerhouses to Trump’s pick strongly suggests uncertainty about whether Kavanaugh fits the bill. The American Family Association immediately called on its supporters to oppose his nomination. The Family Research Council “welcomed” the nomination, but not with the enthusiasm with which it welcomed that of Neil Gorsuch last year. “Judge Gorsuch’s record over the last 14 years, especially on religious liberty, gives Americans every reason to believe he will make a fine Supreme Court justice,” FRC president Tony Perkins said at the time (emphasis added).
Perkins’s statement about Kavanaugh lacked that ardor, but he emphasized the importance of those issues, arguing that “under the Obama administration, we saw a growing assault on religious freedom and the courts became a battleground for secularists seeking to remove faith from the public square.” In other words, despite Kavanaugh’s slim record on the issue (the DC Circuit sees far more regulatory cases than culture-war ones), Perkins was was angling to inject questions about religious freedom—from the right—into the debate over Kavanaugh’s nomination. In contrast, Perkins pledged that Gorsuch’s confirmation would “be a battle but I am confident the president will get his nominee confirmed.” He made no such bold claim for Kavanaugh.
Much would be at stake were Kavanaugh to buy into the Christian-right positions on religious liberty. Other cases involving questions such as whether religiously affiliated adoption agencies can turn away same-sex couples and whether religious organizations are exempt from laws prohibiting pregnancy discrimination are making their way through the lower courts. If Kavanaugh bolsters the conservative majority on these issues, as Trump and conservative judicial-pipeline groups like the Federalist Society and Heritage Foundation have promised, the government’s ability to protect citizens’ rights—such as under nondiscrimination laws, laws protecting reproductive rights, or in other areas such as education, labor, and employment—is very much at risk.