Five Questions for SCOTUS Nominee Judge Brett Kavanaugh
Tonight, President Trump announced his nomination of federal appeals court Judge Brett Kavanaugh to take Justice Anthony Kennedy’s seat on the Supreme Court. During his 12-year tenure on the U.S. Court of Appeals for the D.C. Circuit, Judge Kavanaugh has had few chances to weigh in on matters of religious freedom, leaving us concerned about what we can expect if he’s confirmed.
Justice Kennedy leaves behind a legacy of unresolved questions about the role of religion in public life. Just last month, Justice Kennedy led the majority in sidestepping a conflict between a gay couple looking to buy a wedding cake and a baker who refused to serve them because of his religious convictions in Masterpiece Cakeshop v. Colorado Civil Rights Commission. Though Justice Kennedy called for tolerance, the specifics of how these conflicts should be resolved are left to the incoming court.
Interfaith Alliance believes that true religious freedom, as guaranteed by the Constitution, includes the beliefs and practices of people of all faiths and philosophies. At the same time, the protections of the Bill of Rights extend to the point where one person’s rights impinge on the same rights of another. How Judge Kavanaugh will address this, and other questions of religious freedom, are matters of tremendous import.
So, there are questions we have for Judge Kavanaugh. They are questions that any candidate for an appointment to our highest court should be expected to answer, but they are made more pointed — and perhaps more specific — by assertions he has made over the course of his judicial career.
Question 1: What role, if any, does your religious faith play in your judicial philosophy?
Religion serves as an essential source of moral guidance for many people, judges and politicians included. But it is absolutely critical that any Supreme Court nominee can effectively separate his faith from his interpretation of the Constitution and law.
Supreme Court justices bear the responsibility of ensuring that people of all faiths and of goodwill receive equal treatment under the law. By allowing personal beliefs to influence their legal reasoning, a justice runs the risk of privileging one religious viewpoint over another while weakening the barrier between church and state.
Article 6 of the Constitution prohibits any religious tests for public office, judgeships included, and the religious makeup on the court has shifted dramatically over time. But the question of how each justice navigates their dual commitments to judicial impartiality and personal conviction endures. It is Judge Kavanaugh’s turn to answer it.
Question 2: If a conflict arose between your faith and your obligations to the Constitution, how would you resolve it?
In 1960, then-presidential candidate John F. Kennedy addressed the matter of his Catholicism with wisdom, stating that the issue was not what kind of church he believed in but what kind of America he believed in. He left no doubt about that point, saying, “I believe in an America where the separation of church and state is absolute.”
President Kennedy promised the American people to address issues of conscience out of a focus on the national interest, not out of adherence to his faith. He pledged that, if his religious faith ever came into conflict with his obligations to the Constitution, he would resign his public office.
Judges, unlike presidents and other public figures, must step back when a conflict arises. This promotes public confidence in the judiciary by ensuring that decisions are not based on personal bias. As the final word on our constitutional rights, public perception of the Supreme Court is critical to a functional legal system.
By explaining how he would handle a conflict, Judge Kavanaugh has the opportunity to demonstrate his commitment to judicial integrity and ethics.
Question 3: How might you describe your judicial philosophy concerning the Establishment Clause?
Thomas Jefferson described the First Amendment as creating “a wall of separation between church and state.” For more than 200 years, Americans of all backgrounds have enjoyed the freedom to live out our faiths in the most religiously diverse nation in the world. By ensuring that the government does not become a tool for imposing one set of religious beliefs on all of us or benefitting one tradition over another, we ensure that members of every religious tradition have the opportunity to create and sustain faithful communities, and that people may choose how to live out their beliefs and values.
But these rights have become increasingly contested, especially as members of minority faiths face growing hostility. Just last month, the Supreme Court rendered its decision in Trump v. Hawaii. By upholding the president’s travel ban, the court made clear that singling out certain people based on their faith is permissible as long as it can be explained some other way. We lament this blow to the guarantee that people of all faiths are protected under the Establishment Clause.
As a newly appointed Supreme Court nominee, Judge Kavanaugh will be called upon to protect the rights of members of all faiths from discrimination. He must explain how he would work to preserve the fundamental values underlying the First Amendment, including both freedom of and freedom from religion.
Question 4: Do you believe that the Free Exercise Clause supersedes other rights?
The Free Exercise Clause ensures that each person has the freedom of conscience to pursue their own religious values. Those rights end where they would interfere with another’s ability to do the same.
However, in recent years, a wide range of individuals and institutions have received special dispensation to impose their beliefs on others. Most notably, in Hobby Lobby v. Burwell, a private corporation sought an exemption from the Affordable Care Act because they argued that birth control violated their religious convictions. The Supreme Court ultimately found in their favor, giving the green light to employers to supersede their employees’ personal beliefs and medical needs.
The owners of Hobby Lobby do not have more rights than their employees, simply because of the nature of their claims. But by communicating to employers, or shopkeepers or anyone else, that their religious beliefs take precedence, the court inevitably restricts the rights of those on the receiving end who live by different values.
As noted earlier, the court chose not to resolve this question in Masterpiece. Judge Kavanaugh, if he is confirmed, will likely have an opportunity to weigh in. We deserve to know if he will ensure that each person’s rights are respected or, as in Hobby Lobby, only some of us can expect a truly free exercise.
Question 5: What is your perspective on the current state of the law concerning direct government funding of religious institutions?
Traditionally, the government is prohibited from becoming “entangled” with religion, but in the past few years, proponents of direct funding of religious institutions have worked to chip away at existing restrictions. In 2007, the Supreme Court limited the legal standing of taxpayers to challenge government funding of religion. In 2017, the court permitted a religious school to qualify for a state grant for playground repairs. This spring, the executive branch has undertaken efforts to ease barriers to public funding for faith-based organizations.
These are only a handful of examples of ever greater government involvement in private religious affairs. By directing funding to religious entities and limiting opportunities for members of the public to voice their concerns, we are watching that wall come down piece by piece. Will Judge Kavanaugh step in to preserve it?
Judge Kavanaugh deserves an opportunity to answer these questions and more — but first, they must be asked. The Senate has the obligation and duty to thoroughly question Judge Kavanaugh and any future nominees on these issues. The American people deserve to know if his confirmation will move the nation toward policies that advance a narrow set of interests or whether we can expect a champion for true religious freedom.