Supreme Court Nominee Kavanaugh’s Testimony on Religious Freedom

Judge Brett Kavanaugh
Judge Brett Kavanaugh

U.S. Court of Appeals Justice Brett Kavanaugh, President Trump’s nominee for the Supreme Court to succeed retiring Justice Anthony Kennedy, was grilled this week by senators intent on plumbing the conservative Catholic juror’s stand on such hot-button issues such as Roe v. Wade which legalized abortion. If confirmed, the appointment of a conservative justice is also expected to cause a shift in the tenor of the court, which in the past has been fairly balanced with Justice Kennedy as the swing vote. Amid protests and interruptions, Justice Kavanaugh also took up the issue of religious freedom.

“The Supreme Court has had a number of cases on religious expression in schools,” said Justice Kavanaugh, “these are always challenging cases and very fact-specific. There are two principles that the precedents have set forth. One is that school-sponsored prayer at school events is often impermissible, either at the school day or graduations [as in] Lee vs. Wiseman. At the same time, when students want to express themselves in some way—T-shirt, clothing or saying their own prayer, say before a football game or other event that students want to say a prayer for themselves or there’s an open forum where students are allowed to say whatever they want, and one student chooses to talk about religion or say a prayer—that’s generally on the free speech side of the house… under Supreme Court precedent to protect the religious liberty of the individual in that circumstance.

“[Regarding] the Santa Fe Case, I think Sen. Cornyn would say it came on the freedom of religion/freedom of speech side of the house, the Supreme Court thought that the school was too involved in the prayer opportunity in that case, and thus attributed the prayer in that case to the school, and the Supreme Court in that case said the prayer was impermissible. A very fact-specific decision, based on some of the actual prayers … in the school district. So [there’s] a gray area on the facts between these two principles. Freedom of speech and freedom of religion for individuals, on the one hand, no school-sponsored prayer on the other. And those two principles are part of the Supreme Court precedent that I think the courts have applied for a long time now.”

“I was asked to work on several cases involving religious liberty and speech,” continued Justice Kavanaugh under questioning by Sen. Ted Cruz. “I also did an amicus brief in the Good News Club case, and that was a case where a school district allowed use of a gymnasium … area after school for whenever groups in the community wanted to use the facility. And they would allow everyone to come in, the Boy Scouts, any community group to come in, but they didn’t allow religious groups to come in. And that seemed to be discrimination against religion, discrimination against religious people, religious speech. And I was asked to do an amicus brief which made the points. I wrote that religious people, religious speakers, religious speech is entitled to its place on an equal basis in the public square including a school auditorium or gymnasium.

“The Supreme Court agreed with that principle in that case,” said Justice Kavanaugh,” stating that discrimination against religion in public facilities in the nature of what was going on in that case was impermissible, and a violation of freedom of speech, freedom of religion and therefore unconstitutional.

“Those cases are important, I think, because it’s important to recognize that the Constitution, the First Amendment to the Constitution, as well as many statutes protect religious liberty in the United States, religious freedom in the United States. And as I’ve said in some of my opinions, we’re all equally American, no matter what religion we are or no religion at all—that means religious speakers and religious people have their right to their place in the public square.”

Sen. Cruz then asked Justice Kavanaugh to comment on the “Priests for Life” case.

“That was a group that was being forced to provide a certain kind of health coverage, over their religious objection, to their employees,” said Justice Kavanaugh. “Under the Religious Freedom Restoration Act, the question was first, was this a substantial burden on their religious exercise, and it seemed to me quite clearly it was. It was a technical matter of filling out a form, and in that case, they said filling out the form would make them complicit in the provision of the abortion-inducing drug that they, as a religious matter, objected to. The second question was did the government have compelling interest nonetheless in providing the coverage to the employees, and applying the governing Supreme Court precedent from Hobby Lobby. I said that the answer to that was yes, the government did have a compelling interest following Justice Kennedy’s opinion in Hobby Lobby he said the government did have a compelling interest in ensuring access. And then it came down to the least restrictive means prong of the Religious Freedom Restoration Act. In that prong of the act, to my mind, is an opportunity of seeing is there a win-win in some respects? In other words, the government, in ensuring health care coverage cannot be provided without doing it on the backs of the religious objector. So that’s what the court’s looking for … and in that case it seemed to me that the government had avenues to ensure that the coverage was provided without doing so on the backs of the religious objectors and I so ruled, following the Supreme Court precedent in Hobby Lobby and in a subsequent case Wheaton College where they had an order that I followed and seemed to dictate the result that I identified in the Priests for Life dissent.

“In another case, the Religious Freedom Restoration Act was overwhelmingly passed by Congress in the early 1990s and signed by President Clinton and was an important addition to the protection of religious freedom in the United States to supplement the constitutional that exists in the free exercise clause.

“… I think in a lot of the religious freedom cases that the Supreme Court has had, that’s been the case. There was a prisoner in an opinion written by Justice Alito that I believe, a unanimous decision, where the prisoner … a Muslim is being forced to shave his beard in violation of his religious beliefs. Justice Alito, as I recall, wrote the opinion for the Supreme Court saying that was a substantial burden in his religion and was not necessary and that’s just another example of how religious liberty protects all of us no matter what our religious beliefs are and that’s a foundational principle both of the Constitution and of the Religious Freedom Restoration Act.”


From its beginnings, the Church of Scientology has recognized that freedom of religion is a fundamental human right. In a world where conflicts are often traceable to intolerance of others’ religious beliefs and practices, the Church has, for more than 50 years, made the preservation of religious liberty an overriding concern.

The Church publishes this blog to help create a better understanding of the freedom of religion and belief and provide news on religious freedom and issues affecting this freedom around the world.

For more information visit the Scientology website or Scientology Network.

Freedom of Religion U.S. Supreme Court
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