Brett Kavanaugh Can be Trusted to Protect First Amendment Rights of Pro-Life Christians

Opinion   |   Penny Nance   |   Aug 13, 2018   |   10:38AM   |   Washington, DC

President Trump should be commended for his nomination of Brett Kavanaugh, an abundantly qualified and impartial judge, to the Supreme Court. Throughout his judicial career, Kavanaugh has consistently defended Americans’ constitutional rights, including the religious liberties of all Americans, as enshrined in the First Amendment. Kavanaugh can be trusted to continue to protect this fundamental right as a justice on the nation’s highest court.

First and foremost, Judge Kavanaugh understands that judges must base their rulings on the text of the Constitution and the law, not on their own personal political beliefs or policy preferences. In a keynote address at Notre Dame Law School last year, Kavanaugh explained this obligation: “I believe very deeply in those visions of the rule of law as a law of rules, and of the judge as umpire,” he said. “By that, I mean a neutral, impartial judiciary that decides cases based on settled principles without regard to policy preferences or political allegiances or which party is on which side in a particular case.”

Judge Kavanaugh’s record provides abundant evidence that he applies view of a judge as an umpire to his cases. His respect for the constitutional rights of Americans is evident in his rulings to safeguard religious liberty.

Three of his cases in particular shed light on his clear understanding of the First Amendment, and his rulings to block the government from infringing on these rights.

In Priests for Life v. HHS, Judge Kavanaugh voted to block the Obama administration from forcing religious organizations to provide abortion-inducing drugs to their employees in violation of their consciences. Dissenting from his colleagues on the D.C. Circuit, he argued that the government’s efforts violated the Religious Freedom Restoration Act and chastised the panel majority for “judicially second-guessing the correctness or the reasonableness” of the plaintiffs’ religious beliefs.

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He added that it is “crystal clear” that when “the Government forces someone to take an action contrary to his or her sincere religious belief” or “suffer a financial penalty,” the Government “has substantially burdened the individual’s exercise of religion.” Kavanaugh’s position was later upheld by the Supreme Court.

In another case, Newdow v. Roberts, Judge Kavanaugh affirmed the constitutionality of the traditional prayer at presidential inauguration ceremonies, as well as the invocation of “God save the United States and this honorable Court” prior to court proceedings. Judge Kavanaugh wrote that he would not “dismiss the desire of others in America to publicly ask for God’s blessing on certain government activities,” adding that “stripping government ceremonies of any references to God or religious expression would reflect unwarranted hostility to religion.”

Finally, in Archdiocese of Washington v. WMATA, Judge Kavanaugh said that the D.C. Metro’s ban on religious advertising — including Christmas themed ad s —was “pure discrimination” and “odious” to the First Amendment. During oral arguments in the case, Judge Kavanaugh engaged in what the Washington Post called “unrelenting” questioning of Metro’s lawyer, stating that he saw the ban as unconstitutional. (Unfortunately, the court ruled against the Archdiocese late last month; because of his nomination, Judge Kavanaugh did not file an opinion).

In short, Judge Kavanaugh has demonstrated that he can be trusted to safeguard our First Amendment right to religious liberty. His record as a judge shows that he understands that the Constitution recognizes religious freedom as a fundamental right, and that American law protects people of faith from being compelled to violate their sincerely held religious beliefs.

In Brett Kavanaugh, President Trump nominated has nominated an excellent jurist who understands his limited role as judge, just as he did with Justice Neil Gorsuch. The Senate should stop playing partisan political games to stall this great nominee. It should, instead, act quickly to confirm Kavanaugh so he can be ready to go when the Court’s next term starts in October. Note:  Penny Nance is the CEO of Concerned Women for America.