Tuesday

September 18th, 2018

Liberty

Pundits -- especially lib ones -- are trying to define Trump's second nomination to the high court as an epic battle over the future of Roe v. Wade. That misses the bigger picture

Amy Goldstein

By Amy Goldstein The Washington Post

Published July 9,2018

Raymond Kethledge, one of President Donald Trump's finalists for the U.S. Supreme Court, has never explicitly stated his views on abortion or same-sex marriage. But he has spoken loudly on an issue that is just as important to conservative court-watchers.


In April, Kethledge ruled in favor of Cathedral Buffet, a church-run Ohio restaurant being sued by the government because of claims that congregants were "spiritually coerced" by their pastor to work without pay. Kethledge went further than his fellow judges on the U.S. Court of Appeals for the 6th Circuit in arguing that the restaurant's Catholic affiliation shielded it from federal labor laws.


While liberals are working to define Trump's second nomination to the high court as an epic battle over the future of Roe v. Wade, the 1973 ruling that cemented abortion rights, conservatives inside and outside the White House have embraced the broader issue of religious freedom as a central priority and are assiduously probing judges' sympathies in cases such as the one involving Cathedral Buffet.


During the past few years, questions of religion have rocketed in importance to those on the right as a response to the Obama era, which brought an expansion of gay rights, increased access to birth control and other liberal changes. Now the White House and its allies are eager for a justice who will give more deference to social conservatives eager to blunt the last administration's policies through faith-based objections.

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 granting faith-based changes to federal and state policies, broadening government funding of church-run organizations and allowing prayer in public settings.


"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."


One person involved in the Supreme Court nomination process said 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.


Advocates on both sides of the political spectrum say judicial views on religion are certain to figure into a fierce confirmation fight, no matter whom the president chooses.


To some extent, religious liberty has become a code among conservatives for the political tinder box of abortion rights. A spotlight already has been trained on two Republican moderates, Sens. Susan Collins, Maine, and Lisa Murkowski, Alaska, who support preserving Roe v. Wade.


"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," including whether judges are willing to shield religious objectors from progressive policies or soften the boundaries between church and state.


Bennett said it encompasses a Supreme Court ruling last month in favor of a Colorado baker, opposed to same-sex marriage on religious grounds, who refused to make a wedding cake for a gay couple. And it includes 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 lead-up to his selection, which he plans to announce tonight.


Brett Kavanaugh, a top contender, has been a judge for a dozen years on the U.S. Court of Appeals for the District of Columbia Circuit, which tends to hear fewer cases about religion than some other circuits.


Kavanaugh, a practicing Catholic, has been criticized by some social conservatives for not being sufficiently far to the right. But he wrote a strong dissent in 2015, when his fellow District Circuit judges decided not to take a case involving a group of priests who objected to the Obama administration's rules on contraceptive coverage.


And five years earlier, he wrote a concurring opinion in a case in which the District Circuit ruled against a group of atheists who challenged the prayers and words "so help me G od" at presidential inaugurations. Kavanaugh went beyond the court's majority, who held that the group did not have standing to sue. He argued that "those long-standing practices" do not violate the Constitution's First Amendment.


Kethledge, also a leading candidate, has been a judge for a decade on the Cincinnati-based 6th Circuit. In addition to the Cathedral Buffet case, he was part of a court majority that ruled last year in favor of a Michigan county that begins its monthly Board of Commissioners meetings with a Christian prayer and requests that the audience assume a reverent position.


Another apparent finalist, Amy Coney Barrett, has been on the Chicago-based 7th Circuit for just nine months. Already, she has been part of a three-judge panel that ruled in favor of a Jewish day school sued by an ill teacher who had been fired. The school claimed its religious identity shielded it from the Americans With Disabilities Act.


"Looking at the records of these potential nominees, virtually all of them seem to be far more conservative . . . on religious freedom and church-state issues" than Kennedy, the retiring justice, said Alex Luchenitser, associate legal director at Americans United for Separation of Church and State, which already has begun a campaign to persuade senators to reject what it is calling a "particularly dangerous" nomination.


Off the court, Barrett is well-known for statements about her personal religious faith, including an article she co-wrote years ago suggesting that judges might recuse themselves in death penalty cases if their Catholic beliefs conflicted with the law.


If she were chosen, her nomination could reprise the appellate court confirmation fight last year in which Senate Democrats - notably Sen. Dianne Feinstein, D-Calif., - expressed concern about the influence of a Catholic group to which Barrett belongs. Republicans retaliated by accusing Democrats of being anti-religion.


On the Senate Judiciary Committee, staffers from both parties are still organizing the rudiments of a confirmation process and have not yet focused on specific issues. But a senior GOP aide said that if Barrett became the nominee, committee Republicans would again accuse Democrats of imposing a religious test on a candidate for public office.


Liberal advocates, however, say they are less concerned with a nominee's private religious beliefs than with his or her potential for reshaping the law.


"There are lots of cases in the lower courts" involving faith-based objections to marriage licenses for same-sex couples and crosses on public property, as well as abortion rights, said Elliot Mincberg, a senior fellow at the liberal People for the American Way. "All of them are under supreme danger if you get one more justice significantly further to the right."

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