Religious Freedom Annual Review evaluates newest Supreme Court justices

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A discussion panel at BYU Law’s Religious Freedom Annual Review took an in-depth look at the newest Supreme Court justices, Neil Gorsuch and Brett Kavanaugh, to predict how they might rule in future religious freedom cases.

Justice Kavanaugh, whose appointment to the Supreme Court was one of the most contentious in history, “will be sensitive to religious belief (and) favor accommodation of pluralism,” said panelist Erik Jaffe. Jaffe, a partner at Schaerr Jaffe LLP, based this prediction on Kavanaugh’s lower court decisions.

Jaffe also noted that Kavanaugh’s accommodation of religion in public life will make him uncertain on the First Amendment’s establishment clause.

The First Amendment states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Many political and law professionals understand the free exercise clause to refer to the people’s right to practice their religion, while the establishment clause prohibits Congress from enforcing a state religion or giving preferential treatment to one belief system over another.

Jaffe said that while Kavanaugh will likely vote in favor of maintaining religious influence in public life, he is sensitive to the need to include all belief systems equally and see that all religions, including atheism and other non-believing groups, are equally represented.

In one case, an atheist objected to the invocation offered by a clergy member at an inauguration, and the inaugural oath’s mention of God. Jaffe paraphrased Kavanaugh’s response to the objection, “His beliefs are genuine, they’re strongly held … and we shouldn’t diminish that.”

The panel predicted that Justice Gorsuch will show less sensitivity to religious representation issues based on his previous treatment of the establishment clause.

Katskee said that Gorsuch’s previous decisions amount to him saying, “I don’t like all the law under the establishment clause of the First Amendment as it exists, because the things it has us look at to decide what’s constitutional and what’s not don’t make any sense to me. I don’t care what people think, and I’m not worried about there being favoritism.”

Katskee cited a case in Texas, in which a Buddhist who had received the death penalty was not allowed to have a Buddhist priest with him in the execution chamber, despite the fact that the state allowed Christian pastors and Jewish Rabbis to be present. The Buddhist was granted a stay of execution — a decision Gorsuch did not agree with. He wrote separately to say that Texas had the right to decide which religions could have their clergy or leaders present at executions.

Despite Gorsuch’s frequent pronouncements about protecting religious freedom, it remains unclear whether he means protecting all people of all religions, or protecting people in the majority religion who hold unpopular views, Katskee said.

The panel noted that almost all of the justices were less likely to rule in favor of protecting religious freedoms in cases involving sex-related topics, such as contraceptives or same-sex relations.

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