Ed Whelan of Bench Memos yesterday defended Judge Brett Kavanaugh’s jurisprudence in a host of areas, including religious liberty. I have great respect for Whelan. I have long been an admirer of his blog, checking it daily. But I fear he may be either working too hastily under time pressure, or blinded by his friendship with Kavanaugh, and in any case is mistaken in his defense of the judge’s religious-liberty jurisprudence. This explains in doctrinal detail why that is so.
Whelan first defends Kavanaugh in the case of Newdow v. Roberts, wherein the infamous atheist and serial litigator (Newdow) and others challenged the language of “so help me God†in the presidential oath as well as prayers at the presidential inauguration as violations of the Establishment Clause. 603 F.3d 1002 (D.C. Cir. 2010). Whelan points to Kavanaugh’s separate opinion where he reached the merits and found that the challenge fails.
The problem isn’t Kavanaugh’s analysis on the merits, which seems fine. It’s that Kavanaugh, disagreeing with the majority, even reached the merits at all. To do so, he had to find—and did find—that the plaintiffs had standing to bring the challenge because of offended-observer status. In other words, Kavanaugh’s opinion stands for the proposition (although he doesn’t use these words) that under the Establishment and Speech Clauses, the psychological harm of being offended is a sufficient injury to trigger the jurisdiction of a federal court to hear one’s lawsuit.
Kavanaugh concedes that “
t is true that the [Supreme] Court did not pause to expressly address standing in those religious display and speech decisions†he relies on. But the very fact the court has heard these cases is sufficient, he says, to support his reading.
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The fact that Kavanaugh was willing to expand standing in the area of the Establishment Clause beyond that which the Supreme Court has expressly done in the past is bad news for religious liberty. If his views were adopted by other courts, then other frivolous claims attacking religion in the public square would have a better chance of being heard in federal courts. Some judges would then part ways with Kavanaugh’s views on the merits, finding the Establishment Clause violated where it was not.
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Lower courts are not bound by the Supreme Court’s undecided assumptions. Yet in Priests for Life v. U.S. Dep’t of Health & Human Servs., Kavanaugh writes separately and goes out of his way to declare that “Hobby Lobby strongly suggests that the Government has a compelling interest in facilitating access to contraception for the employees of these religious organizations.†He argues that “the views expressed by a majority of the Justices in Hobby Lobby†support a finding that the contraceptive mandate is a compelling government interest.
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If these were Kavanaugh’s only errors in religious liberty cases, perhaps they would be forgivable. Perhaps. But it’s part of a troubling pattern. Take Mahoney v. Doe, 642 F.3d 1112 (D.C. Cir. 2011), for example. There the majority, with Kavanaugh joining in full, found that a municipal prohibition on chalk drawings on the street in front of the White House, challenged by a Catholic priest and other Christian plaintiffs who wished to protest then-President Obama’s position on abortion, as well as the anniversary of Roe v. Wade, did not violate the religious plaintiffs’ religious freedom under RFRA.
http://thefederalist.com/2018/07/05/potential-supreme-court-nominee-brett-kavanaugh-troubling-record-religious-liberty/
