Religious liberty becomes a main focus for conservatives

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 allegedly were being “spiritually coerced” by their pastor to work without pay. Kethledge 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 the president’s second nomination to the high court as an epic battle over the future of Roe vs. 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 that 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 faithbased objections to federal and state 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 become 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 who studies 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 spectrum say that this matter of judicial views on religion — as a shield from progressive policies for religious objectors, and on church-state boundaries — is certain to figure in a fierce confirmation fight over whoever the president chooses.

To some extent, religious liberty has become a code among conservatives for the political tinder box of abortion rights, as a spotlight already is trained on two Republican 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. “These things are all bound up together.”

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.”

Bennett said it encompasses, for instance, a Supreme Court ruling last month in favor of a Colorado baker, opposed to samesex 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 effort by a group of nuns to get out from under 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.