Court pick may hinge on religious freedom
Hopefuls’ views could be a proving ground
Raymond Kethledge, one of the finalists President Donald Trump is considering for the Supreme Court, has never explicitly stated his views on abortion or same-sex marriage.
But in April, Kethledge, a judge on the U.S. Court of Appeals for the 6th Circuit, ruled in favor of Cathedral Buffet, a church-run Ohio restaurant being sued by the government because congregants were allegedly being “spiritually coerced” by their pastor to work without pay. He went further than his fellow judges in writing that the restaurant’s Catholic affiliation shielded it from federal labor law.
While liberals are working to define Trump’s second nomination to the high court as an epic battle over the future of Roe v. Wade, the 1973 ruling that cemented abortion rights, judges’ sympathies in cases such as Cathedral Buffet are serving as a proving ground for conservatives inside and outside the
White House who have embraced religious freedom as a central priority.
One person involved in the Supreme Court nomination process said the president “doesn’t discuss particular areas of the law” in interviews with potential nominees. But as aides have sifted through candidates’ judicial records, they have paid careful attention to whether candidates “are sensitive to ... the free exercise of religion, and the importance of conscience rights,” said the person, who spoke on the condition of anonymity to disclose internal discussions.
In court rulings and other writings, the final candidates for the vacancy created by the retirement of Justice Anthony Kennedy, long a swing vote on charged social issues, have consistently taken positions broadening faith-based objections to state and federal policies, government funding of church-run organizations, and prayer in public settings.
Such deference to religious freedom has become a precondition for a spot on the White House’s list of Supreme Court contenders, people close to the process say, as conservatives have focused in the past few years on counteracting progressive changes of the Obama era, including expanding gay rights and access to birth control coverage.
“I can’t think of anyone who has had a cramped or narrow view of religious liberty on that list, and I suspect that any judge who had such a conception would not have made it onto the list,” said Ramesh Ponnuru, a writer and fellow at the American Enterprise Institute studying the future of conservatism. “The Trump administration, from the top down, is very aware of the intense concern that social conservatives have about religious liberty and the great importance of social conservatives to the coalition that got it elected.”
Advocates on both sides of the political aisle say this issue of judicial views on religion — as a shield from progressive policies for religious objectors, and on churchstate boundaries — is certain to figure in a fierce confirmation fight over whomever the president chooses.
To some extent, religious liberty has become code among conservatives for the political tinder box of abortion rights, as a spotlight already is trained on two GOP Senate moderates, Sens. Susan Collins of Maine and Lisa Murkowski of Alaska, supporters of preserving Roe v. Wade, which legalized abortion nationwide.
“There is absolutely a strong correlation between views on religious liberty and views on abortion. That is true of judges, true of senators, true of voters,” Ponnuru said.
But William Bennett, a conservative commentator and former U.S. education secretary, said, “The religion thing is bigger and broader. It means [abortion], but it means more than that.”
He said it encompasses, for instance, a Supreme Court ruling last month in favor of a Colorado baker, opposed to same-sex marriage on religious grounds, who refused to make a wedding cake for a gay couple, as well as a 2016 case in which the court sent back to lower courts a legal bid by a group of nuns to be exempted from a requirement in the Affordable Care Act to provide contraceptive coverage.
It is this broader constellation of religious issues that appears in the records of jurists Trump is considering in the final lead-up to his selection, which he has said he will announce Monday.
Brett Kavanaugh, a top contender, has been a judge for a dozen years on the U.S. Court of Appeals for the D.C. Circuit, which tends to hear fewer cases about religion than some other circuits.
Kavanaugh, a practicing Catholic, has been criticized by some social conservatives for not being sufficiently far to the right. But he wrote a strong dissent in 2015, when his fellow D.C. Circuit judges decided not to take a case involving a group of priests who objected to the Obama administration’s rules on contraceptive coverage.
And five years earlier, he wrote a concurring opinion in a case in which the D.C. Circuit ruled against a group of atheists who challenged the prayers and words “so help me God” at presidential inaugurations. Kavanaugh went beyond the court’s majority, who held that the group did not have standing to sue. He argued that “those long-standing practices” do not violate the Constitution’s First Amendment.
Kethledge, also a leading candidate, has been a judge for a decade on the Chicagobased 6th Circuit. Besides the Cathedral Buffet case, he was part of a majority that ruled last year in favor of a Michigan county that starts Board of Commissioners meetings with a Christian prayer and request that the audience assume a reverent position.
Another apparent finalist, Amy Coney Barrett, has been on the Chicago-based 6th Circuit for just nine months. Already, she was part of a three-judge panel that ruled in favor of a Jewish day school sued by an ill teacher who’d been fired, claiming that its religious identity shielded it from the American with Disabilities Act.
“Looking at the records of these potential nominees, virtually all of them seem to be far more conservative ... on religious freedom and church-state issues” than Kennedy, the retiring justice, said Alex Luchenitser, associate legal director at Americans United for Separation of Church and State, which already has begun a campaign to persuade senators to reject what it is calling a “particularly dangerous” nomination.
Outside the court, Barrett is best-known for statements about her personal religious faith, including an article she co-wrote years ago suggesting that judges might recuse themselves in death penalty cases if their Catholic beliefs conflicted with the law.
If she were chosen, her nomination could reprise an appellate court confirmation fight last year in which Senate Democrats said they were concerned about the influence of a Catholic group she’s in. Republicans retaliated by accusing the minority party of being anti-religion.