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.
Even without the Trump-appointed Kennedy successor, the Court had already expanded “religious freedom” to include previously unimagined religious rights. In its 2014 decision in Hobby Lobby v. Burwell, the Court ruled that closely held corporations had rights under the 1993 Religious Freedom Restoration Act, and that those rights were violated by a federal regulation requiring that employer-provided health insurance cover contraception cost-free. From the start, the regulation, issued by the Obama administration under the Affordable Care Act, was targeted by the right as evidence of government hostility to the religious beliefs of opponents of contraception.
As last month’s Supreme Court decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission showed, the Court has also become receptive to the idea that religious liberty claims can constrain the application of civil-rights laws intended to protect LGBTQ people from discrimination. It ruled that a finding by the Colorado Civil Rights Commission—that a baker violated state antidiscrimination law by refusing to bake a cake for a gay couple’s wedding—infringed on his Free Exercise rights.
The crucial, driving bit of evidence behind Kennedy’s majority opinion in that case was the claim that one of the commissioners had expressed hostility to the baker’s religious beliefs. Masterpiece Cakeshop, then, was not just a victory because Kennedy recognized the baker’s Free Exercise claim; it was a victory because he made government “hostility” to religion a deciding factor in determining whether the gay couple’s civil rights should be protected.
But that supposed “hostility” was based on precisely on the commissioner’s concern that “freedom of religion has been used to justify discrimination” and can be used “to hurt others.” If that’s “hostility”—and “hostility” is a justification for exempting religious actors from complying with civil-rights laws—then any claim that religion should not be used as an excuse to discriminate could make a nondiscrimination law vulnerable to erosion.
The smearing of government as anti-religious has extended beyond the realm of reproductive and LGBTQ rights, long the heart of the culture wars. A recent concurring opinion of Sixth Circuit Judge Raymond Kethledge, another candidate Trump was considering for the Court, in a Fair Labor Standards Act case demonstrates the currency of this charge among conservative jurists. That Kethledge was on Trump’s shortlist shows just how mainstream these views are in the conservative movement and Republican Party.
In that case, Acosta v. Cathedral Buffet, the Department of Labor sued for back wages on behalf of congregants of televangelist Ernest Angley, who, according to the lower court, were coerced into working without pay at a church-owned restaurant, which Angley called “the Lord’s buffet.” Refusing to work, Angley told congregants from the pulpit, was tantamount to “closing the door on God” and “blaspheming against the Holy Ghost.” The congregants claimed to be victims of spiritual abuse—but to Kethledge, that was not a matter for the government to address.
Although the majority, in ruling for Angley, didn’t uphold his Free Exercise claim, Kethledge issued a resounding endorsement of it in a concurring opinion. He argued that it was the government that had engaged in coercion by suing on behalf of the workers to collect their back pay—not Angley for pressuring them to work. “One can agree that the Reverend’s comments were in poor taste, and yet see that the Department has no business regulating them,” Kethledge wrote. The government, he wrote, is not “even competent to make the spiritual judgment it purported to make here.”
“What is perhaps most troubling about the Department’s position in this case,” Kethledge concluded, “is the conceit of unlimited agency power that lies behind it.”
For Trump’s Christian-right base, a nominee’s views on religious freedom (and the ways government infringes on it) are as non-negotiable as the nominee’s views on Roe.
What conservatives call religious freedom everyone else could just as plausibly call the government’s ability to protect the rights of other people from discrimination by anyone with a religious agenda.
The Christian right’s mixed reaction to Kavanaugh doesn’t mean he’d ultimately rule against their conception of religious liberty—just that he will face pressure from the right to be more forthcoming about his views. Conservatives are sure that any of Trump’s nominees would overturn Roe. But if the past few years are any indication, they also have their eyes on another prize—the Court’s explicit endorsement of the idea that religious belief places one beyond the law.