Where Does Brett Kavanaugh Stand on Religious Liberty? A Look at His Record

Christian Post ^ | 07/112018 | Michael Gryboski

[SeekAndFind]

President Donald Trump announced on Monday evening that Judge Brett Kavanaugh is his pick to replace the retiring United States Supreme Court Justice Anthony Kennedy.

Kavanaugh is already being hailed by many conservative groups as an excellent jurist while being vilified by many liberal organizations as a detriment to civil liberties.

As a member of the U.S. Court of Appeals for the District of Columbia Circuit since 2006, Kavanaugh has weighed in on many cases over the years, including a few that deal with religious freedom issues.

Here are four cases that involved the issue of religious liberty in which Kavanaugh offered an opinion. They include both opinions that sided with and stood against the majority.

Chaplaincy Of Full Gospel Churches v. United States Navy (2008)

In the case of Chaplaincy Of Full Gospel Churches, et al., Appellants v. United States Navy, et al., a group of Protestant Navy chaplains filed a lawsuit arguing that the Navy's retirement system gives preferential treatment to Catholic chaplains.

Writing the opinion of the court, Kavanaugh argued that the Protestant chaplains lacked standing and ruled against their lawsuit, affirming a lower court decision.

"If plaintiffs had alleged that the Navy discriminated against them on account of their religion, plaintiffs would have alleged a concrete and particularized harm sufficient to constitute injury-in-fact for standing purposes," wrote Kavanaugh.

"But plaintiffs have conceded that they themselves did not suffer employment discrimination on account of their religion. They have conceded that the Navy did not deny them any benefits or opportunities on account of their religion. ... Rather, they suggest that other chaplains suffered such discrimination."

Newdow v. Roberts (2010)

Michael Newdow, an emergency room doctor who pleaded his own case that resulted in the Pledge of Allegiance being called unconstitutional, talks about the Pledge of Allegiance at his home in Sacramento, California, in this June 27, 2002 file photo. Newdow, a California atheist who in 2004 lost his Supreme Court fight to remove the phrase 'under God' from the Pledge, on September 14, 2005 won an initial round as he sought to revive his cause in the courts. A U.S. district court rejected a motion to dismiss his case to get the words excised from the pledge, recited by millions of schoolchildren every day, citing the precedent of an earlier ruling by the U.S. 9th Circuit Court of Appeals. REUTERS/Susan Ragan

The case of Michael Newdow, et al., Appellants v. John G. Roberts, Jr., Chief Justice of the U.S. Supreme Court, et al. centered on an atheist activist's lawsuit over the religious aspects of former President Barack Obama's inauguration ceremony.

The court affirmed an earlier dismissal of the Newdow lawsuit, with Kavanaugh authoring a concurring opinion in which he argued that, contrary to what the majority opinion said, plaintiffs did have standing to sue.

"The government initially argues that plaintiffs lack standing to challenge the presidential oath and inaugural prayers. I disagree. Under the relevant Supreme Court precedents, plaintiffs have demonstrated injury-in-fact, causation, and redressability, the three components of standing," wrote Kavanaugh.

Despite his belief that Newdow had standing to sue, Kavanaugh also stated that he thought the lawsuit would fail to prove a violation of the Establishment Clause, citing the 1983 U.S. Supreme Court case Marsh v. Chambers.

"The Supreme Court's holding in Marsh — allowing government-sponsored religious speech or prayer at a public event where prayers have traditionally occurred, at least so long as the prayers are not proselytizing (seeking to convert) or otherwise exploitative — does not satisfy all Americans," continued Kavanaugh.

"No holding on this issue would in our pluralistic society. But the precedent has endured, and as a lower court we must follow and apply it in this case."

Mahoney v. Doe (2011)

Reuters/Joshua RobertsU.S. President Barack Obama speaks during his last press conference at the White House in Washington, U.S. on Jan. 18.

In the case of Patrick Mahoney, Reverend, et al., v. John Doe, police officer, Metropolitan Police Department, et al., a three-judge panel of the D.C. Circuit Court ruled against a group of Christian pro-life activists who planned to chalk messages in front of the White House in protest of then President Barack Obama's pro-abortion views.

The panel sided with a lower court in rejecting the pro-life activists' arguments that the ban on their chalking violated the First Amendment and the Religious Freedom Restoration Act.

In a concurring opinion, Kavanaugh explained that he agreed with the decision "in its entirety" and felt that the ban on chalking in front of the White House was "a reasonable time, place, and manner restriction for purposes of First Amendment doctrine."

"I do not want the fog of First Amendment doctrine to make this case seem harder than it is. No one has a First Amendment right to deface government property," added Kavanaugh.

"No one has a First Amendment right, for example, to spray-paint the Washington Monument or smash the windows of a police car."

Priests for Life v. HHS (2015)

The case of Priests for Life et al. v. United States Department of Health and Human Services centered on a pro-life group suing the Obama administration over its controversial preventive services mandate that required religious organizations to pay for birth control and abortion-inducing drugs.

When Priests for Life filed a petition to get a full court hearing for their appeal, the D.C. Circuit Court rejected their request when a majority did not vote in favor of it.

Kavanaugh authored one of the dissents, arguing that the refusal to grant the petition contradicted the results of the U.S. Supreme Court decisions in Burwell v. Hobby Lobby and Wheaton College v. Burwell.

"We are a lower court in a hierarchical judicial system headed by 'one supreme Court.' U.S. Const. art. III, § 1. It is not our job to re-litigate or trim or expand Supreme Court decisions. Our job is to follow them as closely and carefully and dispassionately as we can," wrote Kavanaugh.

"Doing so here, in my respectful view, leads to the conclusion that the plaintiff religious organizations should ultimately prevail on their RFRA claim, but not to the full extent that they seek."

[G Larry]

I concur with his legal reasoning in each of these cases.

[Slyfox]

as closely and carefully and dispassionately as we can,"

"Dispassionately" is a good and telling word he used. That means that he takes any of his own "feelings" out of the equation and looks precisely at the law and logically decides according to the law.

Right there he has opened himself up to being a firm constitutionalist.

As opposed to one of the females on the court who decided her opinion based on not liking Trump's "rhetoric."

[Wuli]

The Chaplaincy of Full Gospel Churches case was not in the end a “religious freedom” case as it wss a case of whether or not the plaintiffs claims met the legal standards that could qualify them for “standing” in the case. The court ruled they did not have standing.

In Newdow v. Roberts ALL that Kavenuaugh actually defended was blind deference to precedent; he argued nothing from his own intellect, from his own thinking; just allegiance to precedent.

Mahoney v. Doe was actually about those repsonsible for government property having permitted allowances as to time, place and mannern of “free speech” that can be conducted/made on the property. It was not about any particular speech, as to pro or con as regards that speech.

Priests for Life shows Kavenaugh reaching where a circuit cour judge generally does not - a matter not before them, not part of the decision. The matter before the court was if the plaintiffs should be granted an appeal to a higher court. That is not a rearguing of a case, but whether or not the iportance of the case suggests an appeal should be granted, no matter the possible outcome there. (That right to an appeal was denied and Kavenaugh dissented against that denial). Kavenuagh extended his comments to the matter not before the court - how he thought the higher court would decide if the case was passed to them.

[NutsOnYew]

We are a lower court in a hierarchical judicial system headed by 'one supreme Court.' U.S. Const. art. III, § 1. It is not our job to re-litigate or trim or expand Supreme Court decisions. Our job is to follow them as closely and carefully and dispassionately as we can," wrote Kavanaugh.

Here's the problem with all this: All of the decisions, concurrences, and dissents Kavanaugh has written are based on his understanding of precedents. But, now he will be in a position to help create precedents and we have no idea what he really thinks.