After much controversy, Justice Brett Kavanaugh was added to the U.S. Supreme Court this fall to replace Justice Kennedy, who retired. This is good news for supporters of (1) religious liberty; (2) the right to life; and (3) opponents of judicial activism, often called “legislating from the bench.”
The nine-member Court now consists of a majority of 5 conservative Justices appointed by Republican presidents.
This article will not delve into the 1980s sexual assault allegations against Justice Kavanaugh. Readers have different views on that issue. Rather, the focus here is on how the newly configured Supreme Court will affect the rights and interests of religious people and religious institutions.
John Yoo, a University of California at Berkeley Law School professor who attended Yale Law School with Justice Kavanaugh, recently wrote in The National Review that with “a fifth conservative justice joining Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch, for the first time in about eight decades, the country may have a truly conservative Supreme Court.” Legal commentator Rich Logis, writing for The Federalist this fall, stated: “President Trump is reforming the Supreme Court to how the Founders envisioned it.”
Both sides of the political divide agree. The liberal advocacy group “People for the American Way” stated this summer that “Brett Kavanaugh will push an already conservative Court even further to the right on numerous issues that are profoundly important to everyday Americans.
Many of these issues are already in the courts and heading to the Supreme Court, and the addition of Kavanaugh would create a rock solid 5-4 far right majority to decide these cases—and potentially to use them to overrule key precedents like Roe v. Wade.”
President Trump also has about 100 appointments to lower federal court judge positions pending possible approval by the U.S. Senate, and, by this fall, already had about 70 judges confirmed to lower federal court positions. The Washington Post reports that the median age of these judges is 49 years, and most, if not all, are conservative “originalist” judges. Given their life tenure pursuant to Article 3 of the U.S. Constitution, The Post accurately concludes that President Trump has already left a “conservative imprint” on the federal judiciary.
So, what now? Why should people of faith care about this development? Because it means religious liberty will be supported by the reconfigured Supreme Court. Also, the Supreme Court-granted nationwide rights to an abortion and gay marriage are in doubt, issues that are important to many people of faith. As explained herein, these issues appear likely to be sent back to the states and their citizens to decide after they reach the new Supreme Court majority in the next year or two.
The author understands that readers have widely different opinions on these issues. The point of this article, rather, is to let both sides know what’s coming concerning the effect of Justice Kavanaugh’s addition to the Supreme Court, and how this affects people of faith. As shown herein, both ends of the political spectrum recognize that this is the new reality of the Supreme Court.
Also, this article makes the point that, regardless of what side one is on, these issues are meant to be resolved by the people through the democratic process, not by five unelected lawyers with lifetime tenure on the Supreme Court.
Since 2003—15 years ago—abortion supporters and advocates of judicial activism have opposed Justice Kavanaugh as he rose through the federal judiciary to its highest level. In 2003, after working in the George W. Bush White House, he was nominated by President Bush to a very important lower federal appellate court position, the D.C. Circuit Court of Appeals. Democrats blocked his nomination to that position for three years. Why? Because they know he is a judicial conservative who will apply statutes and the U.S. Constitution as written, and will not “legislate from the bench” by ruling to create “rights” not in the Constitution. They also knew that the goal was to groom him for a position on the Supreme Court. Indeed, Professor Yoo stated in a recent interview that Justice Kavanaugh, his Yale Law School classmate, “has been running for the Supreme Court since he was 25.”
Justice Kavanaugh was eventually confirmed to the D.C. Circuit Court of Appeals in 2006. He held that position for 12 years, and now serves on the Supreme Court.
Justice Kavanaugh made it to the Supreme Court for three simple reasons. First, his qualifications are impeccable. Second, he was nominated by a Republican president after being screened and approved by the conservative Federalist Society, like Justice Gorsuch—his friend and high school classmate at Georgetown Prep in the Washington D.C. area—a Catholic school. President Trump elevated him to the Court last year to replace the very conservative Justice Scalia, who died. Third, the Republicans constituted a majority of the U.S. Senate during his nomination process, which allowed them to fast-track it and confirm Justice Kavanaugh.
Concerning abortion, during his Supreme Court confirmation hearing, an email Justice Kavanaugh wrote in 2003 while working for President Bush was unearthed. It states, concerning the 1973 Roe v. Wade decision legalizing abortion nationwide, that “I am not sure that all legal scholars refer to Roe as the settled law of the land at the Supreme Court level since the Court can always overrule its precedent, and three current Justices on the Court would do so.” With the addition of Justices Gorsuch and Kavanaugh in the last year, that number is now 5—a controlling majority.
This important point is supported by a speech Justice Kavanaugh gave last year to the conservative American Enterprise Institute. He talked for more than an hour about his “first judicial hero,” the late Chief Justice William Rehnquist. He was appointed to the Supreme Court by President Nixon in 1972 and served on the Court for 33 years. Justice Kavanaugh confirmed his own “originalist” approach to interpreting the Constitution, stating that it is “a document of majestic specificity. Its specific words have meaning.”
Justice Scalia, the most well-known advocate for originalism, defined it this way: “The Constitution that I interpret and apply is not living but dead, or as I prefer to call it, enduring. It means today not what current society, much less the Court, thinks it ought to mean, but what it meant when it was adopted.”
Justice Kavanaugh also said in his speech last year that absent a constitutional amendment, the words in the Constitution “continue to bind us as judges,” rejecting the belief that the Constitution is a “living document” that must change with the times. He further stated: “Who decides when it is time to create a new constitutional right? The Constitution quite specifically tells us that the people decide through their elected representatives.” He added that changes to statutes and the Constitution are to be made solely by the people directly and through the legislative process, “not by the courts snatching that constitutional or legislative authority for themselves.”
To reinforce his point, Justice Kavanaugh noted that when Chief Justice Rehnquist served on the Supreme Court, he rejected efforts by it to “enshrine its policy views into the Constitution,” and he saw the Court’s power as limited—“to interpret and apply the law as written— not by its own personal and policy predilections.”
Justice Kavanaugh then cited an “extraordinarily important” Texas Law Review article Chief Justice Rehnquist wrote in 1976 called “The Notion of a Living Constitution.” Justice Kavanaugh quoted a passage from it stating that “however socially desirable the policy goals sought to be advanced might be, advancing them through a freewheeling, nonelected judiciary is quite unacceptable in a democratic society.” Justice Kavanaugh also highlighted Chief Justice Rehnquist’s statement that the Constitution does not put the popularly elected legislative and executive branches “in the position of a television quiz show contestant so that when a given period of time has elapsed and a problem remains unsolved by them, the federal judiciary may press a buzzer and take its turn at fashioning a solution.”
Justice Kavanaugh said that Chief Justice Rehnquist’s “point was that it is not for a judge to add to or subtract from the individual rights or structural protections of the Constitution based on the judge’s own views.” Justice Kavanaugh said that it is “impossible to overstate” the significance of this article to him and how it caused him “to understand the role of a judge in our constitutional system.” He stated that “in my view, Rehnquist’s article is one of the most important legal articles of all time.”
Chief Justice Rehnquist’s article further states: “A mere change in public opinion since the adoption of the Constitution, unaccompanied by a constitutional amendment, should not change the meaning of the Constitution.” His article rejects the idea that judges “have a role of their own, quite independent of popular will, to play in solving society’s problems.” It cites the statement in President Lincoln’s first inaugural address that “the candid citizen must confess that if the policy of the government, upon vital questions affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made,” then “the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.” Chief Justice Rehnquist also wrote in the article Justice Kavanaugh effusively praised last year that a belief in a “living Constitution” is “a formula for an end run around popular government,” which “is genuinely corrosive of the fundamental values of our democratic society.”
Concerning abortion, Justice Kavanaugh emphasized last year that Chief Justice Rehnquist—again, his “first judicial hero”— dissented from the Court’s 1973 majority opinion in Roe v. Wade, stating that “any such unenumerated right” (to abortion) “had to be rooted in the traditions and conscience of our people,” and “Rehnquist said he could not reach such a conclusion about abortion.” Also, in a 2011 interview, Justice Scalia, originalism’s greatest advocate, stated: “If indeed the current society has come to different views, that’s fine. You do not need the Constitution to reflect the wishes of the current society. Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that’s what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey, we have things called legislatures, and they enact things called laws. You don’t need a constitution to keep things up-to-date. All you need is a legislature and a ballot box. You don’t like the death penalty anymore? That’s fine. You want a right to abortion? There’s nothing in the Constitution about that. But that doesn’t mean you cannot prohibit it. Persuade your fellow citizens it’s a good idea and pass a law. That’s what democracy is all about. It’s not about nine superannuated judges who have been there too long, imposing these demands on society.”
Also, when Justice Kavanaugh served on the D.C. Circuit Court of Appeals and had to follow Supreme Court precedent, in cases called Newdow, Garza, and Priests for Life; he (1) interpreted abortion and “reproductive rights” narrowly; and (2) supported religious freedom.
So, if your “first judicial hero” dissented in Roe v. Wade, and you are a constitutional “originalist” who believes public policy decisions must be made solely by the people— directly or through their elected representatives, not judges—and you are on record as saying that Roe is not “settled law,” how are you going to rule if given the chance to overrule Roe? The answer seems clear. Indeed, legal commentator Rich Logis, writing for The Federalist this fall, stated: “There is zero we don’t know about Justice Kavanaugh’s interpretive approach and acumen.”
Also, in his final debate with Secretary Clinton, then candidate Trump promised to appoint pro-life Justices to the Supreme Court. Concerning overruling Roe, he said that if he “put another two or perhaps three justices on, that will happen,” and “that will happen automatically, in my opinion, because I am putting pro-life Justices on the Court.” Through Justices Gorsuch and Kavanaugh, that happened twice in the last year.
In a 1992 Supreme Court case, Planned Parenthood v. Casey, Justice Kennedy rejected the chance to overrule Roe. Justices Kavanaugh and Gorsuch seem likely to go the opposite direction when given the chance. Several abortion cases are now winding their way through lower courts, and one or more of them could be the vehicle to overturn Roe in the next few years. These cases involve (1) a challenge to a Mississippi law banning abortions after 15 weeks of pregnancy; (2) an Alabama law banning dilation and extraction abortions; (3) an Arkansas law banning medication abortions; and (4) a case involving a challenge by Planned Parenthood to a new abortion law in Missouri. The law requires that abortion providers serve as ambulatory surgical centers and contract with doctors who have admitting privileges at a local hospital. A three-judge panel of the federal Eighth Circuit Court of Appeals unanimously ruled against Planned Parenthood and vacated a lower court order blocking enforcement of the law. Because it fails to comply with this law, Planned Parenthood’s Columbia, Missouri location will now be forced to stop performing abortions. It is expected to ask the United States Supreme Court to exercise its discretion to accept its appeal of this ruling. Also, more challenges to anti-abortion laws will likely be asserted in the next few years.
For the same reason, the constitutional right to gay marriage recognized by the U.S. Supreme Court in 2015 in the Obergefell v. Hodges case is also now in doubt. Abortion, a “right to privacy,” and gay marriage are not mentioned in the U.S. Constitution. Also, Justice Kennedy was the deciding vote in favor of gay marriage in Obergefell, and he wrote the majority opinion in that case. He has been replaced by Justice Kavanaugh, a demonstrably more conservative constitutional originalist.
Significantly, Chief Justice Roberts, in his dissenting opinion in Obergefell, which was joined by Justice Thomas, protested that the Court in that case was taking “the extraordinary step of ordering every State to license and recognize same-sex marriage,” and that “while many people will rejoice at this decision,” for “those who believe in a government of laws, not of men, the majority’s approach is deeply disheartening. Supporters of same-sex marriage have achieved considerable success persuading their fellow citizens—through the democratic process—to adopt their view. That ends today. Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law. Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept. The majority’s decision is an act of will, not legal judgment. The right it announces has no basis in the Constitution or this Court’s precedent,” and it openly relies “on its desire to remake society according to its own ‘new insight’ into the ‘nature of injustice.’” Chief Justice Roberts then stated: “Just who do we think we are? It can be tempting for judges to confuse our own preferences with the requirements of the law. But as this Court has been reminded throughout our history, the Constitution ‘is made for people of fundamentally differing views.’ Accordingly, ‘courts are not concerned with the wisdom or policy of legislation.’ The majority today neglects that restrained conception of the judicial role. It seizes for itself a question the Constitution leaves to the people, at a time when the people are engaged in a vibrant debate on that question. And it answers that question based not on neutral principles of constitutional law, but on its own ‘understanding of what freedom is and must become.’ I have no choice but to dissent.” This strong statement by Chief Justice Roberts sounds exactly like the views of Justice Kavanaugh. Like Chief Justice Roberts and Justice Gorsuch, he is a member of the conservative Federalist Society, which recommended the nominations of Justices Gorsuch and Kavanaugh.
Chief Justice Roberts then concluded his Obergefell dissent with a statement that, with the addition of “originalist” Justices Gorsuch and Kavanaugh— and the departure of Justice Kennedy, the architect of the Obergefell ruling— forecasts the likely eventual overruling of Obergefell. This would result in the issue of gay marriage going back to the people and the states to decide. He wrote: “Understand well what this dissent is about: It is not about whether, in my judgment, the institution of marriage should be changed to include same-sex couples. It is instead about whether, in our democratic should rest with the people acting through their elected representatives, or with five lawyers who happen to hold commissions authorizing them to resolve legal disputes according to law. The Constitution leaves no doubt about the answer.”
So, “the writing is on the wall” concerning abortion and gay marriage being mandated for the entire country by the Supreme Court. These issues seem likely to end up again being decided by the people in each of the 50 states, directly or through their democratically elected representatives. According to Justice Kavanaugh, Chief Justice Roberts, and other constitutional “originalists,” that is how it should be.
Also, Justice Kavanaugh repeatedly emphasized his “independence” and the importance of an “independent” federal judiciary during his recent confirmation hearing. To many, that was code for “I will vote to overrule cases I think have no basis in the Constitution as written, like Roe and Obergefell, and I don’t care if that causes a public uproar because I have life tenure, and I am independent and want to protect the important role of the judiciary in our government.”
Concerning Roe and Obergefell, Jay Michaelson, a legal affairs columnist for the liberal leaning Daily Beast, wrote this year that the addition of Justice Kavanaugh to the Supreme Court puts those cases “on the chopping block.”
Concerning gay marriage and religious freedom, other cases from—for example—Oregon, Washington, Arizona, and Michigan are winding their way through the courts. They involve challenges to government commands to participate in gay weddings against one’s sincere religious beliefs. This again includes Christians being asked to prepare a customized cake for a gay wedding (in Oregon); to prepare floral arrangements (in Washington); and to hand make artwork for a gay wedding (in Arizona); contrary to their sincere religious belief that marriage is only between one man and one woman. A case from Michigan involves a farmer who was banned by a city from participating in its farmers market because he refused to host gay weddings at his farm. He sued to challenge that decision as a violation of his constitutional religious freedom rights. Also, a case is pending in the Kentucky Supreme Court involving the refusal of the Christian owner of a T-shirt company to make customized T-shirts for a gay pride festival based on his sincere religious beliefs.
Through one or more of these cases, the U.S. Supreme Court seems likely to again address this conflict. This time, however, the new Court majority is more likely to squarely decide the broader legal issue about whether the government can ever (1) force private citizens to participate in an event that (2) violates their sincere religious beliefs and (3) engage in creative speech, or (4) face government penalties, including large monetary fines. This year’s U.S. Supreme Court decision in the Masterpiece Cakeshop case from Colorado—where the state government compared a Christian baker’s sincere belief against gay marriage to the Holocaust and said he was “despicable” because he was just using his religion as “an excuse to hurt others”—was limited to its egregious facts. The Court only held that those facts constituted impermissible overt governmental animus to religion. The other cases now pending in lower courts give the new Supreme Court majority another chance to make a broader legal ruling that such governmental targeting of Christians for their sincere beliefs always violates the First Amendment rights to (a) freely exercise religion; (b) to engage in free speech; and/or (c) to not have “correct” speech compelled by the government. Given that Justice Kavanaugh replaced Justice Kennedy, a gay marriage supporter, Americans can expect a more pro-religious freedom and broader legal ruling supporting First Amendment rights when this issue likely comes before the Supreme Court again. Many commentators noted that the Court “punted” on these important constitutional issues in Masterpiece Cakeshop. It appears Justice Kennedy wanted to leave these legal issues to his successor and the other Court members to decide. That will likely occur relatively soon given the new composition of the Court and the many cases percolating through lower courts nationwide.
Indeed, in his Masterpiece Cakeshop concurring opinion, Justice Thomas, joined by Justice Gorsuch, stated that “it is one thing to conclude that the Constitution protects a right to same-sex marriage; it is something else to portray everyone who does not share that view as bigoted and unentitled to express a different view. In Obergefell, I warned that the Court’s decision would inevitably come into conflict with religious liberty as individuals are confronted with demands to participate in and endorse civil marriages between same-sex couples.” For the reasons stated above, that legal conflict is likely to be resolved once and for all relatively soon and in favor of religious liberty.