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   From: PBARKER002@woh.rr.com   
      
   Judge Kavanaugh’s record on religious liberty and personal conscience   
   examined   
      
   Washington D.C., Aug 3, 2018 / 02:30 pm (CNA).- As the Senate prepares   
   for confirmation hearings on Judge Brett Kavanaugh’s nomination to the   
   Supreme Court, scholars and commentators are considering his past   
   approaches to religious liberty cases.   
      
   While much of the media coverage of Kavanaugh’s nomination has thus   
   far focused on abortion, and how he might respond to an attempt to   
   overturn Roe v. Wade, his judicial opinions on religious liberty could   
   prove just as influential.   
      
   Many of the most contentious cases to come before the court in recent   
   years have been argued on religious liberty grounds. Cases like   
   Burwell v. Hobby Lobby and Masterpiece Cakeshop v. Colorado Civil   
   Rights Commission were focal points for cultural clashes as much as   
   legal argumentation.   
      
   Attention is now turning to opinions Kavanaugh issued during his time   
   on the U.S. Court of Appeals for the District of Columbia.   
      
   Law Professor Frank Ravitch, who teaches at Michigan State University   
   College of Law, recently highlighted in a post at SCOTUS Blog several   
   cases that could indicate how Kavanaugh approaches the subject of   
   religious liberty from the bench.   
      
      
   The most prominent of these cases was Priests for Life v. United   
   States Department for Health and Human Services. In that case, Priests   
   for Life objected to the government’s contraceptive mandate which,   
   under the accommodation for religious organizations, required Priests   
   for Life to file a specific form with either the insurance provider or   
   the government. They argued that the form they were required to file   
   effectively triggered the coverage of contraceptives, making them   
   complicit in an act they considered immoral.   
      
   The D.C. Circuit Court of Appeals denied Priests for Life a rehearing,   
   but Kavanaugh wrote a dissenting opinion. In it, he argued that the   
   government’s accommodation did place a “substantial burden” on   
   religious organizations, making them act against sincerely held   
   beliefs or else face significant fines.   
      
   Kavanaugh emphasized that it the good faith claims of religious   
   organizations about being made complicit in immoral actions could not   
   be questioned by the court, even if the court thought they were   
   misguided.   
      
   At the same time, he accepted that the government had a “compelling   
   interest” in broadening access to contraception, but that religious   
   organizations could have been better accommodated by allowing them to   
   simply give notice of their objections.   
      
   Ravitch noted that Kavanaugh’s arguments were based substantially upon   
   the Supreme Court decision in Burwell v. Hobby Lobby, and specifically   
   Justice Anthony Kennedy’s concurring opinion in that case. If   
   confirmed, Kavanaugh would fill the seat on the Supreme Court vacated   
   by Kennedy’s retirement.   
      
   Another case which could signal how Kavanaugh might approach religious   
   liberty cases from the Supreme Court is Newdow v. Roberts. In this   
   case, a panel of the D.C. Circuit confirmed the dismissal of a   
   complaint against prayers and the phrase “so help me God” in the oath   
   of office during the presidential inauguration of 2008.   
      
   The complaint was dismissed on the grounds that the 2008 inauguration   
   was now moot, and that there was no standing for the plaintiffs to   
   preemptively challenge future inaugurations.   
      
   While Kavanaugh agreed with the dismissal, he disagreed that the   
   plaintiffs – atheists offended by the instance of public prayer –   
   lacked standing.   
      
   In his concurring opinion, he noted that “all citizens are equally   
   American, no matter what God they worship or if they worship no god at   
   all.”   
      
      
   He argued that, even though some forms of public prayer, like those at   
   presidential inaugurations, were part of long-established traditions   
   and not, therefore, a violation of the constitutional separation of   
   church and state, “we cannot resolve this case by discounting the   
   sense of anguish and outrage plaintiffs and some other Americans feel   
   at listening to a government-sponsored religious prayer.”   
      
   Some commentators have called this recognition of atheistic objections   
   “troubling.” Yet others have acknowledged the common thread between   
   the two opinions in Newdow and Priests for Life. A crucial part of   
   Kavanaugh’s approach to religious liberty appears to be the legitimacy   
   of individual conscience in front of a court.   
      
   This was also a key issue in the Masterpiece Cakeshop case, where the   
   disregard of Colorado authorities for Christian beliefs figured   
   heavily in the Supreme Court’s decision.   
      
   Looking ahead, the Supreme Court seems likely to hear more such cases   
   in the future.   
      
   For example, despite new rules from the Department of Health and Human   
   Services meant to protect religious non-profit organizations and   
   broaden religious exemptions, the Little Sisters of the Poor are back   
   in court over their refusal to provide abortifacient drugs as part of   
   their health care plan.   
      
   Pennsylvania Attorney General Josh Shapiro filed suit against the   
   federal government in October of last year, seeking to end the   
   religious exemption for the Little Sisters of the Poor. A similar suit   
   was also filed by the state of California.   
      
   Should those or similar cases progress, the importance of private   
   conscience could again prove crucial in the Supreme Court’s reasoning,   
   and Kavanaugh could well prove to be the deciding vote.   
      
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