Justice Kavanaugh on Law and Religion

Brett Kavanaugh is in the early stages of his tenure on the Supreme Court. In the coming years, he will have many opportunities to become an integral part of the evolution of the Supreme Court’s law and religion jurisprudence. Here, we reflect on some law and religion issues he has tackled thus far on the Supreme Court.

American Legion v. American Humanist Association (2019)

In this matter, the American Humanist Association brought suit to challenge the Bladensburg WWI memorial cross on a Maryland highway. It alleged a violation of the Establishment Clause. We have discussed this case in-depth in prior posts. The Fourth Circuit had previously held that the cross did violate the Establishment Clause. The Supreme Court granted certiorari on the matter and decided it in June 2019. It overturned the Fourth Circuit with a 7-2 decision, however, there were various opinions composed by the justices. For purposes of this post, we will focus on Justice Kavanaugh’s opinion.

Justice Kavanaugh’s concurring opinion acknowledged that the court relied on the history and tradition test when assessing the status of the cross and moved away from the Lemon Test with regard to its analysis. When weighing if a violation of the Establishment Clause existed, the Lemon Test considered most notably whether the challenged government action had a primary effect of advancing or endorsing religion. Justice Kavanaugh classified the Lemon Test as presently bad law and highlighted other cases where the court also did not apply it.

He identified 5 categories of Establishment Clause cases: (1) religious symbols on government property and religious speech at government events; (2) religious accommodations and exemptions from generally applicable laws; (3) government benefits and tax exemptions for religious organizations; (4) religious expression in public schools; and (5) regulation of private religious speech in public forums. He noted that the Lemon Test does not adequately support the court’s prior decisions in those areas. The first area applying in the present matter was a religious memorial in the form of a cross. It was not coercing into a faith belief and stands as a symbol and reflection of lost soldiers from WWI. The original erection of the monument sought to emulate the grave-markers of the fallen troops overseas. It is rooted in history and tradition.

As for the other categories, in terms of religious exemptions passed legislatively, by their very “definition” he explained that they endorse or advance religion in some way, thus in contradiction of the Lemon Test. The court has upheld these exemptions in various cases. Next, the court has a history of upholding government benefits and tax exemptions that go towards religious organizations, thus also in effect endorsing or advancing religion. Fourth, in regards to school prayer, the Court did not rely on the endorsement and advancement standard of Lemon to ban it from public schools, but rather focused on the coercion elements towards the students. Finally, in regards to religious speech, the Court has allowed religious speech in public forums on an equal basis as secular speech. There was no violation of the Establishment Clause found and the Lemon Test was not a valid explanation for those decisions.

Overall, Justice Kavanaugh found the Lemon Test to essentially be dead letter law and that it should not be seriously considered when evaluating Establishment Clause cases. This view along with the further emphasis of the Court on the history and tradition assessment will return the understanding of Constitutional law back to the original understanding of the Establishment Clause. This presents a beacon of optimism in the future of law and religion jurisprudence.

Morris County Board of Chosen Freeholders v. Freedom from Religion Foundation (Cert Denied 2019)

This matter considered whether county historical preservation funds could be applied to religious buildings. The New Jersey Supreme Court ordered the funds not to be dispersed to religious buildings. The U.S. Supreme Court ultimately denied certiorari on this matter, however, Justice Kavanaugh issued a strong opinion agreeing with the denial of cert, but leaving the door open to future challenges on this issue. He also expressed concerns about the anti-religious sentiment growing in this area and how this is inconsistent with the meaning of the First and Fourteenth Amendments.

He focused on two reasons, however, on why the Court here made the decision to deny cert at this time. First, he stated that the factual picture needs clarity and second he would like to see a body of law develop in the wake of the Court’s recent Trinity Lutheran decision where the Court had ruled it was valid for the state to provide funds for tire pieces at a religious school’s playground. Prior to the Supreme Court’s decision, the state had forbid funds to religious private schools, but allowed funding to secular private schools.

It seemed reasonable to conclude that more facts are required in regards to the specific nature of the buildings at issue in this matter on whether they are churches or other religious entities that fall into the historical preservation category. This would allow for a more effective adjudication. The second point, however, is harder to contend with on waiting for more case law to develop from Trinity Lutheran. This case posed an opportunity for the Supreme Court to take an affirmative stand on the issue and provide a form of reinforcement for Trinity Lutheran in recognizing the equality of religious rights. Hopefully, the Supreme Court will take cases similar to this in the coming years to firmly construct a modern enduring standard that is consistent with the original meaning.

Despite not supporting the acceptance of cert at this time, Justice Kavanaugh does pose some interesting points in reflecting on the issue going forward. He emphasizes several Supreme Court cases prior to Trinity Lutheran that sharply attack government discrimination against religion. He puts special attention into classifying religious equality as a “bedrock principle”, that must continue to be applied. He seems eager for the Court to take the correct case on the matter and reinforce its position, but just does not find the fertile ground here with a lack of a history in focusing on the issue of historic grant funds.

He closes with the view that if the factual picture does reveal that funds were prohibited to religious organizations just based on their nature, it would “raise serious questions under this Court’s precedents and the Constitution’s fundamental guarantee of equality.” This recognition provides optimism that the Supreme Court will eventually move in the correct direction in this area, however, this does seem like a missed opportunity to resolve the issue with some permanency.

 Murphy v. Collier (2019)

In Murphy v. Collier, Justice Kavanaugh prepared a concurring opinion on a stay in a death penalty case. In this matter, a Buddhist prisoner was on death row and wanted a Buddhist spiritual adviser to accompany him into the execution room as he was about to be executed. Texas officials would not permit this as only Christian or Muslim advisers were available to accompany inmates into the execution room as they were the only religions represented as official prison chaplains. The Buddhist adviser was to remain in the viewing room because he was not an official chaplain. The execution was ultimately stayed. Justice Kavanaugh emphasized in his concurring opinion that this discriminated against religious denominations.  He considered this an equal treatment case and that the state had two options to remedy the situation: “(1) allow all inmates to have a religious adviser of their religion in the execution room; or (2) allow inmates to have a religious adviser, including any state-employed chaplain, only in the viewing room, not the execution room.” Shortly after the stay was granted, Texas amended its policy to not allow any religious advisors in the execution room, only in the viewing room.

Overall, in this matter Justice Kavanaugh took an approach clearly in support of religious freedom with a sensitivity towards discriminatory conduct directed at a specific faith tradition. On its face this displays a welcomed openness for the Court to continue moving in the direction of greater respect for religious traditions and respect for the role of religion in general. It is worthy of careful protections when confronted with potential discrimination. This concept is translatable to various other cases the Supreme Court has encountered and is bound to encounter in future contexts.

It should be noted, however, that in this situation the factual picture may have benefited from more in-depth reflection. There is a distinction in this matter prior to the stay and ensuing Texas policy change that distinguished and defined the extent of the roles of official prison chaplains compared to other faith advisers. The original Texas policy may not have encompassed the Buddhist advisers because they did not register like other faith traditions as chaplains. The Court could have raised more issues as to what part of the process did discriminatory activity take place, could it have taken place earlier in the chaplain admittance process and now this end remedy is being used to correct the wrong that should have been addressed earlier? Maybe a critical thinking question to consider is an assessment of the nature of the program itself and if it was prone to discrimination when admitting chaplains? While Justice Kavanaugh provided a strong assessment, it would have been beneficial had he went a little deeper into the origins rather than focus simply on the end product.


Overall, although early in his tenure, Justice Kavanaugh has clearly shown a strong interest in Constitutionalist jurisprudence that pays special adherence to the principle of religious freedom. He recognizes the importance of religious protections that are supported by Constitutional law. While we may prefer that the Court move at a faster pace on the issue, the Court will get more opportunities in the coming terms to continue to focus the law in the proper direction and correct the errors of prior Supreme Court rulings in the mid to late twentieth century.

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