Frank S. Ravitch is Professor of Law and Walter H. Stowers Chair in Law & Religion at Michigan State University College of Law.
The number of cases involving religion in which Judge Brett Kavanaugh wrote an opinion for the U.S. Court of Appeals for the District of Columbia Circuit is limited. His opinions are, however, quite enlightening as to how he might fit into the Supreme Court’s complex religion jurisprudence if he were confirmed. I will focus on cases in which Kavanaugh wrote an opinion, whether the majority opinion, a concurrence or dissent. I will also address two amicus briefs Kavanaugh wrote while he was in private practice at Kirkland & Ellis.
This overview shows that Kavanaugh is a thoughtful jurist when it comes to law and religion matters, although a significant number of people might disagree with some of his analysis. It seems that — at least as to law and religion issues — Kavanaugh might fill a role similar to that of Justice Anthony Kennedy; although for the reasons explained below, there are hints he could go in a different direction on some issues.
I will focus on three cases in which Kavanaugh wrote detailed opinions and then turn to his amicus briefs. The cases are Newdow v. Roberts, a 2010 case in which Kavanaugh filed a detailed opinion concurring in the judgment that may provide insight into his views on the establishment clause; Priests for Life v. United States Department of Health and Human Services, in 2015, in which Kavanaugh wrote an extensive dissent from the denial of rehearing en banc that provided detailed analysis of the underlying Religious Freedom Restoration Act claim and also complicity-based religious exemption claims under RFRA; and In re Navy Chaplaincy v. United States Navy, in which Kavanaugh wrote the majority opinion in a 2008 establishment clause case that addressed Article III and taxpayer standing. There are a few other published and unpublished opinions touching on religion issues for which Kavanaugh was on the panel, but did not write a separate opinion. See Navy Chaplaincy v. United States Navy (different Navy Chaplaincy case involving standing based on alleged discrimination in assignments of chaplains); Kaemmerling v. Lappin (involving issues about DNA collection under the Prison Litigation Reform Act and RFRA); St. John’s United Church of Christ v. FAA (raising among other claims, a RFRA challenge to the FAA authorizing the city of Chicago to impose charges on passengers to pay for runway construction and the purchase of land).
A. Newdow v. Roberts
In Newdow v. Roberts, a panel of the D.C. Circuit upheld the dismissal of a complaint filed by several plaintiffs opposing prayers and the addition of the term “so help me God” to the presidential oath at the presidential inauguration ceremony in 2008. The panel held the claim was moot as to the 2008 inauguration and that the plaintiffs lacked standing to challenge future inaugurations. Kavanaugh filed an opinion concurring in the judgment, but he disagreed with the majority’s conclusion that the plaintiffs lacked standing, and he explained how he would have addressed the issues on the merits.
Kavanaugh would have held that the addition of the term “so help me God” to the presidential oath and the invocation and benediction-type prayers at the inauguration do not violate the establishment clause because they fit within the sort of long-term practice exemplified by the legislative prayer the Supreme Court upheld in 1983 in Marsh v. Chambers.
Kavanaugh began by explaining that the harm felt by atheists and others when prayers and religious content are included in public events is very real and should not be underestimated. He found this assessment of the effects on nonbelievers relevant to his analysis of both standing and the constitutionality of the religious content at the inauguration:
First is an obvious point, but one worth emphasizing. In our constitutional tradition, all citizens are equally American, no matter what God they worship or if they worship no god at all…Second, in deciding this case, we cannot gloss over or wish away the religious significance of the challenged Inaugural prayers. The fact that religious words are common to many faiths—or are used repeatedly—does not diminish their religious meaning…Third, and relatedly, we cannot resolve this case by discounting the sense of anguish and outrage plaintiffs and some other Americans feel at listening to a government-sponsored religious prayer. Any effort to tell plaintiffs that “it’s not a big deal” or “it’s de minimis” would be entirely out of bounds, in my judgment. ..Fourth, at the same time, we likewise cannot dismiss the desire of others in America to publicly ask for God’s blessing on certain government activities and to publicly seek God’s guidance for certain government officials.
Despite acknowledging the real injury that these sorts of public religious displays may inflict on nonbelievers, Kavanaugh relied on the longstanding and unbroken practice of adding the words “so help me God” to the presidential oath, and of prayer at presidential inaugurations, to find these practices constitutional, comparing them to the unbroken practice of legislative prayer upheld in Marsh v. Chambers.
Kavanaugh acknowledged that the Supreme Court uses a variety of tests to determine whether a government practice violates the establishment clause, and he explained that these tests tend to be contextual. He did not specifically name the tests, but he was most likely referring to the endorsement test, the indirect coercion test and the Lemon test, derived from the Supreme Court’s 1971 decision in Lemon v. Kurzman. He opted, however, for the “tradition test” from Marsh, claiming that this test applies to government-sponsored religious speech outside of the school context. Although there are a variety of contexts in which one would expect courts to apply one of the other tests to government-sponsored religious speech outside the public schools , such as when sectarian prayer is given at the dedication of a monument with religious meaning, Kavanaugh said little about the other tests.
Marsh’s “tradition” approach essentially gives a free pass to all longstanding religious speech that is nonsectarian and nonproselytizing (A subsequent Supreme Court case, Town of Greece v. Galloway, has removed the requirement that prayer be nonsectarian in many circumstances.). As Kavanaugh noted, the religious speech at the presidential inauguration has a lot in common with the prayer in Marsh because it is a tradition that has continued from the early years of the nation and is nonproselytizing. He struggled to address the fact that the prayers at presidential inaugurations are often sectarian, but he explained that under Marsh, sectarian references are not problematic by themselves so long as they are not used to proselytize, promote any faith or disparage any faith. He would have held that the religious content of the inauguration ceremony did not violate this principle.
Significantly, Kavanaugh suggested that Marsh applies in most nonschool situations in which there has been a longstanding tradition of prayer. However, there is significant debate about whether Marsh applies in contexts outside of those in which government religious speech goes back to the time of the framing. Kavanaugh was careful to mention that as a lower court judge he was bound by Supreme Court precedent. This, of course, leaves open the question of what he might decide if he were on the Supreme Court himself.
B. Priests for Life v. United States Department of Health and Human Services
Kavanaugh dissented from the denial of rehearing en banc in this case, which involved religious organizations’ objections to an accommodation under the Affordable Care Act’s contraceptive mandate. The accommodation required religious organizations who objected to providing contraceptive coverage to file a form with their insurer or a letter with the government. Several religious organizations, including Priests for Life, objected to the filing, alleging that it made them complicit in the ultimate contraceptive care that was provided by the insurance company or the government.
The panel below found no violation of RFRA, and the full D.C. Circuit denied rehearing en banc. Kavanaugh would have granted en banc review and would have ruled for the religious organizations. Again, Kavanaugh explained that the D.C. Circuit is bound to follow Supreme Court precedent, including 2014’s Burwell v. Hobby Lobby, which Kavanaugh believed the panel below had misapplied. In Hobby Lobby, the Court applied RFRA to a challenge by for-profit entities to the ACA’s contraceptive mandate. The Court explained that RFRA requires consideration of whether the challenged government action places a substantial burden on sincerely held religious beliefs, and if so whether the government has a compelling interest for its action and whether the means used by the government to achieve its compelling interest are the least restrictive.
Applying Hobby Lobby, and especially Kennedy’s concurring opinion, Kavanaugh had no problem finding that the religious organizations suffered a substantial burden because they were forced to “take an action contrary to their sincere religious beliefs (submitting the form) or else pay significant monetary penalties.” Kavanaugh did a nice job explaining why complicity claims are both complex and difficult when analyzed under RFRA. Yet, he found that as long as a person or entity makes a complicity claim in good faith, courts cannot question that claim, even if the claim is viewed by a court as “misguided.” For this position he relied on the holding in Hobby Lobby that courts may question the sincerity of a religious belief, but not its “correctness or reasonableness.” In this case he found the complicity concerns to be more than adequate to meet the substantial burden requirement.
Kavanaugh went on to find that the government interest in providing contraception coverage is compelling. He explained that compelling government interests are not static and have been developed over time “in common-law-like fashion.” In concluding that contraception coverage meets the compelling interest requirement, Kavanaugh relied heavily on Kennedy’s concurring opinion from Hobby Lobby. He noted that Kennedy, along with the four Hobby Lobby dissenters, would have found that the government does have a compelling interest in providing access to contraception. Kavanaugh explained that the government has an obvious interest in making contraceptives more “cheaply and widely available” to prevent unintended pregnancies, which pose a significant financial and social cost. He also pointed to the government’s interest in preventing the cost to women’s health and self-determination posed by unintended pregnancies, and the benefits of contraception in preventing abortions.
Thus, the key question under RFRA was whether the government’s accommodation of allowing the religious nonprofits to file the form or letter was narrowly tailored to achieve its compelling interest. Kavanaugh would have held that the government had failed to meet its burden because another, less restrictive option existed, namely, allowing religious nonprofit organizations to notify the government that they object to providing contraceptive coverage. This would put the government on notice that it must take action to find and contact the relevant insurer and make sure coverage is provided. Kavanaugh would not have allowed the organizations to provide no notice, because then there would be no way for the government to meet its compelling interest of having contraceptive coverage provided. Rather, he found that the simple notice option — while not perfect from the organizations’ perspective — did not require an organization to do any more than acknowledge its situation.
Kavanaugh noted that this accommodation was exactly what was suggested in the Supreme Court’s 2014 orders in Wheaton College v. Burwell and Little Sisters of the Poor Home for the Aged v. Sebelius, two cases involving almost identical issues to those in Priests for Life. However, these decisions were not final rulings on the merits of those cases, so it is unclear what the court might ultimately say on narrow tailoring if faced with a final merits ruling. Kavanaugh, however, viewed the proposed accommodations in those cases as “extremely strong signals from the Supreme Court about how to resolve the least restrictive means issue in this case.” Ultimately, due to a change in policy by the Department of Health and Human Services that instituted the notice solution suggested by the Supreme Court in its 2014 orders, these cases have been resolved.
C. In re Navy Chaplaincy v. United States Navy
In this case Kavanaugh wrote the majority opinion. The case involved both Article III and taxpayer standing issues in a case brought by a group of Protestant Navy chaplains about an alleged establishment clause violation based on discrimination in favor of Catholic chaplains in the Navy’s retirement system. Article III standing arises from the constitutional requirement that courts only address cases or controversies in which the claimants have an injury in fact that is traceable to state action and can be redressed by a court. Taxpayer standing has only been applied in establishment clause cases since the 1960’s, but it has been eroded in a series of subsequent decisions.
The majority, over a strong dissent by Judge Judith Rogers, found that there was no Article III standing because the chaplains bringing the claim did not allege that they themselves had actually experienced any discrimination in employment or benefits. This is pretty standard Article III standing analysis, but in rejecting taxpayer standing Kavanaugh applied Supreme Court precedent that has essentially destroyed the original establishment clause taxpayer standing principle from 1968’s Flast v. Cohen, without ever overturning it. The Flast court found an exception in establishment clause cases to the general rule that merely being a taxpayer does not confer a right to challenge expenditures of public funds that allegedly violate the Constitution, because of what it considered the obvious interests of taxpayers in not having their tax dollars fund activities that violate the establishment clause. In a series of cases decided by the Rehnquist and Roberts Courts, including Arizona Christian School Tuition Organization v. Winn, a 2010 Kennedy decision, the sorts of government actions that are subject to taxpayer standing have been narrowed to a point that Flast has been distinguished almost out of existence.
In this case, taxpayer standing was denied because there was no legislation that expressly authorized funds to be used by the Navy to discriminate in providing benefits to the advantage of Catholic chaplains. This is consistent with the recent Supreme Court precedent on taxpayer standing. There is no indication from this opinion that Kavanaugh disagrees with the precedent eroding Flast.
D. Amicus briefs
While in private practice, Kavanaugh wrote two amicus briefs in major Supreme Court law and religion cases. I hesitate to read too much into these briefs, because they were written while in practice and on behalf of amicus interests. Still, the second brief mentioned below is a bit of a head scratcher.
The first is an amicus brief from 2001 in Good News Club v. Milford Central School. The case involved a challenge to the denial of access after school to school facilities on the same terms as other non-curriculum-related student groups. The brief argued that denying access to Good News Club, a Christian Bible-instruction program, in a limited public forum would be the very sort of discrimination based on speech that the court had repeatedly found unconstitutional. As a practical matter, the position taken in this brief was very much in line with the way the court ultimately decided the case and with equal-access jurisprudence generally.
It is the second amicus brief, in 2000’s Santa Fe Independent School District v. Doe, that raises some questions. The brief argued that the court should reject a facial challenge to a school policy allowing a student speaker at football games voted for by a majority of students because it is private speech in a limited public forum. This argument — which was also made by the school district — strains credulity. If indeed a student speech given at a school-controlled forum is somehow “private speech,” the school has engaged in content or viewpoint discrimination by only allowing the speaker chosen by a majority of students to speak. If it is not private speech, then given the long history of establishment clause violations by the school district, including prayer and other activities that violated the Supreme Court’s most basic decisions on the establishment clause, and the role the challenged policy played in that history, there were — as the court ultimately held — serious establishment clause problems.
On law and religion issues Kavanaugh seems a thoughtful jurist, who trends toward a jurisprudence similar to that of Kennedy. This, however, may be a function of the fact that Kennedy wrote some of the key opinions Kavanaugh has relied upon, most notably Kennedy’s concurrence in Hobby Lobby. Kavanaugh does show empathy for those who oppose government religious practices even if he would hold against them in many cases. Yet, in establishment clause cases, if he is not in the mold of Kennedy, he is more likely to lean toward the mold of Chief Justice William Rehnquist, who rarely agreed that government action violated the establishment clause, than, say, that of Justice David Souter, who had a more balanced approach, but was more likely to find an establishment clause violation. As for free exercise, and more specifically RFRA, Kavanaugh seems very similar to Kennedy, and seems willing to find that the government has compelling interests regarding contraception and possibly other matters. But of course, how likely Kavanaugh would be to conclude that a government action challenged under RFRA is narrowly tailored enough to survive is another matter.