Ahead of the United States Supreme Court’s newest term, Justice Brett Kavanaugh lauded recent court decisions that have protected religious liberty and halted discrimination against religious organizations.
During an event hosted by the Center for the Constitution and the Catholic Intellectual Tradition (CIT) at The Catholic University of America’s Columbus School of Law, Kavanaugh said religious liberty is “one area in the six years I’ve been on the court that I think we’ve made — in my view — correct and important strides.”
Kavanaugh, who was nominated to the court by former president Donald Trump in 2018, is one of the six Catholic justices on the Supreme Court. He made the comments during an hourlong interview on Sept. 26 by CIT Director J. Joel Alicea.
During the talk, Kavanaugh referenced four cases specifically: the 2017 Trinity Lutheran decision, the 2020 Espinoza decision, the 2022 Shurtleff decision, and the 2022 Carson decision.
All four cases dealt with government discrimination against religious institutions and answered questions about the First Amendment.
In Trinity Lutheran, Espinoza, and Carson, the Supreme Court ruled that governments cannot deny public benefits or public money to religious organizations simply because they have a religious affiliation. This means that school voucher programs and other government funding programs that are available to secular organizations must also be available to religious ones.
The government entities that initially denied funds to the religious organizations claimed they did so because of the establishment clause of the First Amendment, which states the government cannot make laws “respecting an establishment of religion.” The government argued that if it provided those funds to religious organizations, they would be in violation of the clause.
Kavanaugh said during the talk that this interpretation is “a misreading of our history and tradition” and said policies that outright exclude religious organizations are “unlawful” under both the First Amendment and the 14th Amendment.
The Supreme Court ruled in all three cases that providing those funds does not violate the establishment clause.
In reality, the court found that offering funding programs to secular organizations — and denying them to similar religious organizations — was discrimination that violated the First Amendment protection to freely practice one’s religion and the 14th Amendment’s guarantee of equal protection under the law.
“I think one of the principles that’s been reinforced and elaborated on is that discrimination against religion, against religious people, against religious speech, [and] against religious organizations, is not required by the establishment clause — and indeed is prohibited by the free exercise clause and the equal protection clause,” Kavanaugh said.
Similarly, in the Shurtleff case, the Supreme Court ruled that the city of Boston discriminated against a Christian organization by refusing to let it fly an ecumenical Christian flag at City Hall, even though the city allowed secular groups to fly various flags.
“I think we’ve … reinforced a critical principle of religious equality and religious liberty in those cases and hopefully corrected some of the confusion from litigation-shy local attorneys,” Kavanaugh added. “... I feel very proud of that for recognizing the constitutional protection of religious equality and religious liberty.”
The Supreme Court did not take up any religious liberty cases in its last term but could choose to hear several religious liberty cases in its upcoming term that begins this week.
Kavanaugh discusses Catholic intellectual tradition
During the interview, Kavanaugh also discussed his faith and the Catholic intellectual tradition.
“The Catholic tradition … is reflected in several principles I try to think about daily,” Kavanaugh said.
Kavanaugh referenced Matthew 23:12, which states: “Whoever exalts himself will be humbled; but whoever humbles himself will be exalted.” He said he thinks about this verse “to remember the importance of humility — that you don’t know it all; that you’re trying to learn from others.”
Kavanaugh also referenced Matthew 25, saying it highlights “the importance of feeding the hungry and caring for the sick and housing the homeless.”
The justice said in the past when he volunteered at Catholic Charities, “we’d always say … we serve them, we feed them, not because they’re Catholic, but because we’re Catholic.”
In reference to Catholic intellectual tradition, Kavanaugh said: “I really think of the same kinds of principles,” such as “trying to listen to all sides to try to be open-minded, to try to listen and learn, and to have inquiry and dialogue.”
“I think the Catholic intellectual tradition reflects this, which is inquiry and dialogue and listening and hearing different perspectives and having respectful back-and-forth, to always try to learn more and to understand more,” Kavanaugh said.
“So for me, the Catholic intellectual tradition builds on the Catholic experience and tradition more generally about being part of a broader community where you listen to others, help others, serve others, learn from others, and that’s how I think about it,” Kavanaugh said.
The Republican coalition, co-led by Indiana Attorney General Todd Rokita, filed an amicus brief with the U.S. Court of Appeals for the 7th Circuit on Wednesday.
