As Brett Kavanaugh moves closer to a seat on the Supreme Court, leaders of Jewish organizations are looking ahead at what a conservative majority on the court would mean, particularly when it comes to issues of religious expression.
Kavanaugh hasn’t written much on the topic during his time on the United States Court of Appeals, but he was asked by Sen. Ted Cruz (R-Texas) about his views on religious liberty. In his answer, Kavanaugh expressed his belief that religion has a place in the public sphere.
“The framers understood the importance of protecting conscience, it’s akin to the free speech protection in many ways,” Kavanaugh said. “If you have religious beliefs, religious people, religious speech, you have just as much right to be in the public square, and to participate in public programs, as others do.”
Kavanaugh’s nomination and seemingly clear path to confirmation by a Republican-held Senate have raised the hopes of conservative Jews eager to protect what they call religious liberty after the court recently punted on the question of a Colorado baker who refused to bake a wedding cake for a gay couple, citing a religious objection.
Rabbi Yaakov Manken, the managing director of the rightwing Coalition for Jewish Values, said that some rabbis his group represents have expressed fear that they could be targeted for not participating in gay weddings.
“In recent years, there has been an increasing number of cases of conflict between people’s deeply held religious beliefs and modern Western personal decisions that people are making, for which they demand the right to be respected,” Manken said. “Call it a conflict between religious liberty and sexual liberty.”
Manken admitted he hasn’t heard of a scenario where a rabbi or synagogue was asked to participate in a gay wedding against their objections. But, citing the Colorado case (Masterpiece Cakeshop v. Colorado Civil Rights Commission), he said his group is supportive of Kavanaugh’s nomination, saying he’ll rule in favor of religious groups or people whose religious objections may run afoul of civil rights laws or other government mandates.
And religious conservatives have their sights set even higher for Kavanaugh’s possible tenure, hoping that a majority on the court could break down divides between church and state. Last year, the court ruled that the government could not deny a school grant funding available to other nonprofits simply because it was run by a church. Some see a possibility that Kavanaugh’s confirmation could set the court up to go even farther, opening the door for expanded state funding of religious schools.
In 2001, Kavanaugh authored an amicus brief in which he argued that public school facilities available for after-school use by clubs should also be available for use by religious clubs.
“I think that the next logical steps would be [for the court to allow] various kinds of support for religious schools,” said Stephen Wermiel, a professor of constitutional law at the American University Washington College of Law. “I don’t think it’s a foregone conclusion, but you could make the arguments that there’s already some case law that says that’s OK. I think the court will move in that direction.”
In another amicus brief, Kavanaugh argued that student-led prayers before a football game at the public Santa Fe High School did not violate the establishment clause.
Douglas Laycock, a professor of constitutional law at the University of Virginia, said he sees an increasing religious presence in public schools if Kavanaugh is confirmed.
“I think they’re going to allow governments to put up Christian monuments without any remaining restrictions, allow Christian prayers everywhere with the possible exception of public schools,” Laycock said. “They’d allow Jewish prayers, too, but you don’t get those cases.”
That concerns proponents of strong separations of church and state like Rabbi Jack Moline, the president of the Interfaith Alliance.
Moline said his organization is not taking a position on Kavanaugh’s nomination, but that the group is concerned that Kavanaugh’s confirmation could threaten the rights of the LGBTQ community and further erode the firewall he said should exist between the government and religious institutions.
“We’re concerned that religious institutions will be able to syphon funds off from public education. Kavanaugh thus far seems much more sympathetic to positions of the religious right than what we would consider to be constitutionally defensible,” Moline said. “I do not believe in favorable treatment of Christian institutions and I don’t believe in favorable treatment of Jewish institutions. To seek changes that benefit religious institutions, houses of worships, synagogues, is un-American.”
And Moline said that a sympathetic court would invite religious groups to seek out cases that give them excuses to discriminate against certain religious and sexual minorities.
“It’s what, in the Jewish tradition, we’d call being a scoundrel with the permission of Torah,” Moline said. “Only in this case, it is with the permission of the Constitution.”
Liberals have mobilized in opposition to Kavanaugh. The Jewish Democratic Council of America (JDCA) is urging supporters to call senators and voice opposition to Kavanaugh. But even if Democrats unanimously oppose his confirmation — which is far from a given — they still need two Republicans to join them. Most observers think their only hope is that Sens. Lisa Murkowski (R-Ark.) and Susan Collins (R-Maine) will withhold support.
Halie Soifer, the JDCA’s executive director, said Republicans haven’t been transparent enough, moving forward with hearings before all documents from Kavanaugh’s time in the George W. Bush White House can be reviewed.
“As a former Senate staffer, I’m deeply familiar with the Senate. It’s going to be a very close vote,” Soifer said. “It’s going to come down to one or two senators. And certainly, a nomination of this importance, a Supreme Court justice, a lifetime appointment, the process should be incredibly transparent and the documents should be available and every senator should have the opportunity to make a fully-informed decision.”
But Laycock said Democrats can raise all the process objections they want. In the end, they don’t have the votes to stop confirmation.
When asked if he saw a viable path for Democrats to scuttle Kavanaugh’s ascent to the court, Laycock was unequivocal.
“No. If Collins and Murkowski had any guts, he might not be confirmed. But I don’t see it happening.”