Trading Kennedy for Kavanaugh: What’s at stake for religious freedom?
Thank. You so much to. Bill and Dean sterling it's great to be here back at yelled in school it feels like a lot of water under the bridge since I was last year but, it's. It's really quite an honor to be invited to join you for this wonderful lecture. And I. Also just want to thank both bill, and Dean sterling for their their friendship, and support and good counsel, through the years I really do both, when I was at the White House and outside. Of the White House they've become good. Friends and I'm grateful, for that friendship, and also. Want to thank Lynn haver sad I'm not sure she's, here but she ran around like crazy to get all these details done so Thank You Lynn well. When I proposed. This. The topic of this talk I obviously. Had no idea. What. A maelstrom the, confirmation. Of Brett Kavanaugh, would be and. As. You know I'm focusing. My talk on the topic at hand the, ways in which trading. Justice Kennedy for, justice Cavanaugh, my, impact, religious, liberty but, I want to acknowledge at the outset that, the, confirmation, process has, been and continues to be deeply. Painful for. Many people including many, people here at Yale and so. When, we have a discussion period, I certainly will welcome your. Reflections. On that, topic or any, others that we've brought, up in the introduction, as well. Well. Let. Me just begin showing. Up at a spouse's, workplace, normally. Does, not cause much of a stir. Mary. Davis, Kennedy's, visit to her husband's, workplace on the morning of June 27th. 2018. Was, a little bit different, Mary. Kennedy's, husband, is Anthony, MacLeod, Kennedy. Who. Served at the time as an associate justice the United States Supreme Court and. When. Mrs. Kennedy, and some of her family members came, into the courtroom, that, morning. Things. Started, bubbling and stirring, in the courtroom, because. Sometimes. A spouse will show up of a Supreme Court justice when, they have especially when they have an opinion to. Announce but. Justice Kennedy had no opinion, to, an that morning and there, was lots of speculation, about whether, he would continue, on the court or retire, and there. Was speculation that he might announce if he was going to retire from the bench that morning so you can imagine the journalists, sitting on one side the lawyers, in their, business. Kennedy and family walks in and everybody, sits up straight and starts wondering what's going to happen that day well. As it turned out as I just mentioned Kennedy, did not have any opinion, to announce that morning, from the bench but. Later that afternoon he. Did announce his retirement from. The United States Supreme Court and. He had been there for 30, years after President Ronald Reagan, nominated him to serve. Well. After, the announcement, president Trump moved quickly, to, nominate then judge, Brett Kavanaugh, to replace Justice Kennedy on the Supreme Court and the, White House sent out a press release talking, about this, nomination, being, part of presidents Trump efforts to quote reshape. The judiciary, and, the. White House said and I'm quoting here, that, this nomination, went hand in hand with the president's program to reduce the size of scope of government which. Includes, many, things including promoting. Individual. Liberties and religious, freedoms unquote. Well. To make a very, long, story short.
On October, 6. 2018. As you know the, United States Senate, confirmed, Cavanaugh, to serve as an Associate, Justice of the Supreme Court by a vote of 50 to 48, and Cavanaugh. Was sworn in later that same day. Now. Especially, since the retirement of Justice Sandra Day O'Connor, in 2006. Justice. Kind of Kennedy has been known as the. Swing justice, a swing. Justice, is a justice, who, whose. Vote often is decisive, in, closely. Divided, cases. And who is appointed by the president, of one party but. Sometimes, swings over and votes. With the. Justices. Who have been appointed, by. President. Of another party. So. Justice, Kennedy has been that swing, justice, for many years like justice, O'Connor was before him. Just, as Cavanaugh's record, however suggests, that he is unlikely, to be a swing Justus, thus. Justice. Kennedy's. Resignation. From the court and the, replacement, of him by Justice Kavanagh may. Change American, law in numerous ways including, the law of religious freedom now. What do I mean when I say the law of religious freedom I mean, the religious liberty guarantees, of our laws and how the courts have interpreted and. Applied those, guarantees, according, to their various judicial philosophies. Most. Prominently, these would include the constitutional. Guarantees, of religious liberty and there, are three, of them in our Constitution, one in the body of the Constitution, Article, six what's known as the no religious, test Clause it, prohibits, the government from placing, religious, tests, on public. Office which was quite, a revolutionary. Thing to do when the when the when. We did that years ago with the framing of the Constitution. Then. We have the two religion. Clauses of the First Amendment and as you know the. First Amendment says Congress shall make no law, respecting an, establishment of. Religion or prohibiting. The free exercise thereof. That first, Clause is often, called the Establishment. Clause are the no Establishment. Clause and, the segment, Clause the, Free Exercise Clause, now. Just to put it in a nutshell the. Establishment. Clause prohibits, the government from advancing. Or denigrating, religion, or from. Preferring, one religion, over another Baptists. Over Buddhists Mormons over Methodists, can't. Do that the. Free Exercise Clause, prohibits, the government from targeting. Religion for poor treatment, so, rate and regulation. Has to apply to, similar. Activities, whether they're religiously, are motivated, or not the, government can't be looking, to try to penalize. Religious, activities, under the First Amendment. So. This afternoon we're considering again what trading. That swing justice Justice, Kennedy. Might. Mean for, trading. Him for justice Cavanaugh, and. Of course we only have limited data to, go on right we have maybe the tip of the iceberg, some stuff in his record he. Served in the white house so we have some, of his emails, discussing. These issues from the White House, we have, some. Of his amicus, briefs friend-of-the-court, briefs. That he filed, with. The court when he was in private practice, that. He then commented. On during, his confirmation hearings. And we also have his record, as a, DC Circuit Judge a federal, appellate judge, and there, are some clues here that we'll talk about but we need to keep in mind that it's just it's a limited, picture, that, we have there's much that we don't know and, of course we don't we won't know how justice Cavanaugh is gonna vote until he votes right so, it's, necessarily, speculative.
The Conversation, that we're having today but, it's really important, I think because, religious. Freedom issues including, the separation, of church and state are. Principles. That have been foundational, to our country, and they continue, to be foundational, today even as the country changes, and our religious, demographics. Change as especially. As we become more diverse it becomes even more important. That we learn to live together across, our differences and of course religious liberty is one of the ways in which we do so, also. We. We. Can consider, and try to make sense now of some, ways in which Cavanaugh's, record, both aligns, with, and. Differs. From Kennedy's, record, and then you know try to surmise what, that might mean and. Always. You know looking, at Kavanagh's record, knowing that that's it's. Limited, and it's also some, of it reflecting, him being a DC, Circuit Judge following, the, precedent, as he was bound to do in the Supreme Court well. Where Kennedy and Cavanaugh differ it's obviously, important, area to look at right because, some of the most important. Church state cases are decided, by one, vote. And now. That vote is not no longer Justice Kennedy's by. Justice Cavanaugh us but. Even where Kennedy and Cavanaugh a line or roughly. So it's still important. To look at those areas for several reasons, one. Is that 12 years ago Justice. Samuel Alito, replaced. Justice, O'Connor on the court and till you know she was the swing justice, up, until the. Time she left, and Alito's. Philosophy. On church-state, issues is. Only different than o'connor's so, if we're looking at some precedent, where a Connor was, in the majority we certainly can't assume that Justice, Alito is going to occupy that same space it may be a different, situation and, then, make justice Cavanaugh's vote play, the pivotal, role if it's a 5-4 ruling for example, also, you. Probably know that while it, only takes four justices. To, agree. To hear a case four, justices have to raise their hand and say we want to hear this case it. Takes five to win right, so. Four justices. Usually. Will, not vote. To, hear a case unless. They know what I got five. So. When. The justices, are doing. That and considering. A swing justice like Kennedy I think. They're probably times although this is not a public matter I think there are times when they wondered could we count on him to be on our side if we can't maybe, we ought to not take this case right now because we can't be confident of a win so, may change the kinds of cases, that the court accepts.
Because Justice Kavanagh is less likely to be a swing justice also, when. A justice is riding a majority, opinion that's. Very important, when there's swing justice to try to hold on to that swing justice, particularly, there the fifth vote you, want to ride it in a way that's not going to lose your court majority. But. If the justice is on your, side and it's a lock, then. You probably write the opinion more expansively. Now. Justice Roberts kind of rides hurt on that sometimes, but you, you're you've probably climbed, to. Ride it more expansively. When you know you've got somebody really. Solidly, on your side and. Then finally, this another. Reason why it's important, to consider even where Justice, Kennedy and Kevin are in the same ballpark is, because. The you, know there are lots of different legal tests that the court uses, most of which I'm not going to bore you but today you'll be very glad to know but. What. Tests the court uses can make, a difference, in, how the court decides an issue so. Just. What just test justice, Kavanagh embraces, will, be very important, to watch so, with, that reduction let's look at a few ways in which Kennedy and cabin compared on certain, religious, freedom issues with the first issue being government, neutrality. Among. Religion, since this issue I'm referring, to earlier about the difference between making. Sure that the government is neutral, toward, Baptist, Buddhist Mormons, Methodists and. Muslims. Well. Like Ken at Justice Kennedy justice Cavanaugh recognizes. The basic, constitutional principle. That the government must be neutral. Among. Religions, and this, has been recognized, for a very long time as being an absolute. Bedrock, principle, of the Constitution, in his, writings, and during his confirmation hearings. For example Cavanaugh repeatedly. Said that we are all equally. American. No, matter our religious affiliation. Or lack, thereof, and, he. Has, had some practice, again. A pro bono practice at his firm where he has defended, the rights taken on cases, to defend the rights of Christians and also, Jewish. People from, discrimination, for example, and during, his confirmation hearings, justice justice, Cavanaugh then judge. Made. A point of bringing up a particular Supreme Court case that protected, the free exercise rights of Muslims so. I think we see a thread there of. Being, honoring. This basic, principle. Unlike. Kennedy, however Cavanaugh, seems less. Sensitive. To the possibility that. Certain. Governmental, actions. Might have the effect of creating. De facto, preferences. For, some religions over another and that, that leads me to the second issue the second. Issue I'd, like to talk about is government-sponsored, religious. Expression, in our public schools, now. This may be the area that where, there is the most striking, and significant. Difference between Justice, Kennedy and justice. Cavanaugh that at least that it's surfaced so far and again I'm talking about government-sponsored, religion, with within the public school so I'm going to take a case so we can get our mind wrapped, around what this means, the, case is Santa, Fe Independent School. District, versus doe which, was decided by the court in the year 2000. Now. By way of disclosure I filed an, amicus brief in this case so, I want to make sure I get that out I filed it on behalf of the ABB's Joint Committee for whom I worked at the time on behalf of, the. Challengers. Of the school, sponsored prayer policy. So. Let's start with some of the facts prior to 1995. The public high school in Santa Fe Texas had a policy whereby. A, student, council, chaplain, they had such, a thing delivered. A prayer, over. The PA system before, varsity, football games, now. This practice, and others were challenged, under the First Amendment's, Establishment. Clause saying, government. Cannot. Organize and. Promote religion, in this way in our nation's public schools and, the challenger's interestingly, where two sets of current or former students, in their respective families, one. Family, was. A member of the Church of Jesus Christ of latter-day saints otherwise, known, as Mormons, and the, other family. Was Catholic so, it's important, to remember that sometimes religious. Minorities, you know they're minorities, within the, Christian faith also, and they, were having. Trouble with this school sponsored, religious, practice, because their beliefs were not in line with, the kinds, of prayers that were being offered now. These families, asked, to sue the to, sue the, school anonymously. Why. Did they do that they. Had been subject to a lot of hostility in, the school because of their, objections.
To School sponsored, religious, practices, and they did not want to take it on the chin again or have their students, take it when they brought suit as you can imagine, that. Backlash, growing, so. The courts permitted, they sometimes permit as you know the people, to sue anonymously, and they did in this case and. While. The challengers, were permitted, to sue anonymously, a lower, court noted at one time that, an encoding, here many school officials, apparently, neither agreed, with nor particularly, respected. That, decision, and the. Court warned. The, school and others. Who were taking. The side of the school they said we're gonna slap you with a contempt, sanction, or criminal. Liability if, you continued, attempt to ferret, out who. These challengers. Are so. I'm trying to lay a little bit of groundwork, to understand, the context, with caves, well, I talked about the school chaplain, prayer policy, after the litigation began the school revised the student chaplain. Policy, and the, tweaked policy, was called prayer at football, games that. Was the name of the policy, and it called for a student election to be organized, at the school, about. Whether invocations. Should be delivered and if so who, should give them now. Subsequently. The. You, know we're going through the litigation and I think there's a signal to the school that they may be on. Uncertain. Ground with, their policy so they tweaked it again and, they. Deleted the word prayer, from the title, of the policy, and referred, to, messages, and statements, as well as invitations, so, it was that latter policy, that came before the Supreme Court so. Under these this policy, students, were the speakers. Of the. Prayers but the school was the organizer. They organized the election, they, organized, the, you. Know the PA system and, the games. And, the program pregame. Ceremonies, for the program. So. The Santa Fe case therefore tested. A First Amendment rule the Supreme Court had articulated, in earlier cases I'm going to quote it here there, is a crucial difference the, court says between, government. Speech endorsing religion, which. The Establishment, Clause forbids, and. Private. Speech endorsing. Religion which. The free speech and Free Exercise Clause, is, protect so, we got to figure out which, is this is this government endorsed speech that's. And should, be invalidated, or is. It private student. Speech that, should be protected, because both of these things are really important, to all of us right we want to have our right to express our faith but, also to ensure that the government is neutral, on these matters and I. Should emphasize that when the court says private, speech that doesn't mean speech in private, it, means speech that's attributable, to nongovernmental. Organizations. Or, speakers. Other. Speakers so the court has long recognized. That even, when a student, is the speaker that. Speech can sometimes. Be, school sponsored, speech because of all the indicia of, support, that I mentioned. Earlier but let me give an even more obvious, example, school-sponsored prayer if, I'm the teacher I call on a student to pray you know I've, selected who's, going to pray I have. Organized. The prayer and I'm holding people captive to hear it in the classroom so that's obviously school, sponsored prayer even, though the student is offering, the prayers it's coming out of the mouths of the student now. The court has been especially attentive. To government pressure in the public school setting because. Why we have impressionable. Children, not, adults and they're, there not because they want to be or, although some of them I sure do but, they're required to go to school right so, the. Court, has been really careful about career in that context, legislative. Prayers for, example are treated differently by the court so put that in another box well. Why does the Constitution prohibits, speech. Endorsing, religion including. School sponsored, prayer and put, simply it's because you.
Know The First Amendment, we, believe has said that it isn't the place of government to promote religion. Or organized, religious, exercises, that is the right, of individuals, not the government, well. Back to the Santa Fe case and a six to three decision written. By Justice, John, Paul Stevens the, Supreme Court held that the Santa Fe policy, was school sponsored. Prayer and thus, invalidated, it. Again. It was a 6-3 decision with, justices Kennedy O'Connor. Souter, Ginsburg, and Breyer joining. Justice Stevens opinion and the court said that the the program. The policy was invalid, on its face it. Said viewed in its overall context. And here I'm quoting it, established. An improper, majoritarian. Election, on religion, you, remember the West Virginia versus Barnette decision. About saying you, know our rights our precious individual, liberties aren't up for an election, they're, held in, sacred. Trust for everybody no matter if they're that member the most popular. Group in the nation or the least popular, group in the nation so going on the court said the, the, the, school, hadn't established an improper majoritarian, election on religion and had unquestionably. Had the purpose and created the perception, of encouraging. The delivery of prayer as a series, of important school events and that's, the decision, cited, the fact that the schools were over the public address system by speaker representing, the student body under. This election. That have been organized by the school under the supervision of the school faculty. And pursuant. To this school policy, that by. Its context. Looked like it was implicitly, and explicitly encouraging. Public prayer and also noted that some banned students, had, to go to the game it wasn't something, that they could miss the football team had to come cheerleaders, had to come so it wasn't just an option for, all the students some students were required to be there and the, court's opinion relied, in part on an earlier, ruling written, by Justice Kennedy Lee, versus Weisman, in 1995.
Declaring, That public schools could not invite clergy, to, offer prayers, at graduation. So, we see Justice Kennedy playing an important, role and creating. A building block that the court used and Kennedy, affirmed, in the santa fe decision, now very importantly, at the same time the, court pointed, out that, nothing. In the constitution, as interpreted, by this court prohibits, any public, school student from voluntarily. Praying, at any time before, during, or after the school day the, court wanted to be very clear about that and that's, absolutely, right and should always be protected, indeed there are many other ways for students to express, their faith at school. And if, you're interested we can talk more about that a little bit later I've worked on that issue quite a bit and it's important, for us to protect those rights, well. As it happened, I attended, an event the, afternoon, when Santa Fe decision was handed down where justice O'Connor was speaking, and I, had the rare opportunity to, have a few words with her so, I had. Filed a brief on behalf of the Challenger so I agreed with the decision that she had made and the other five. Justices and so I congratulated. Her on the decision, and when, I did justice O'Connor looked at me and with her characteristic. Dry humor she said the, decision, is not universally. Admired. Ice. Assumes she had been hearing some. Things about the reaction, including from Texas about, that decision well. As it turns out Brett, Kavanaugh, is one. Of those and was at the time I believe who is not an admirer of the Santa Fe decision. And. I. Say. That because Cavanaugh, appears, to believe that, the court, the Santa they court got. The meaning of the first amendment wrong, Cavanaugh. Who was then an attorney in private practice wrote, an amicus brief again. A friend of the court brief for, then congressman, Steve Largent and JC Watts asking the court to uphold the, Santa Fe policy, in the, brief Kavanagh argued that the school's policy was religiously, neutral it, did not require encourage, prayer he said and it, was simply private. Student speech the kind that it should be protected, and. He. Even suggested, that not only was, allowing, prayers in this setting constitutional. But it would be unconstitutional, not. To allow. Those prayers to silence them in this in this setting. And, Cavanaugh. Made a prediction in, his brief he said there should be no mistake then, about what's at stake here, if the, theory advanced by the challengers, is to become enshrined in this court's case law the, full extermination. Of private religious speech from the public schools would be well on its way unquote. Eighteen, years later I think it's safe to say that this prediction was wrong, religious, expression, I had some experience doing with this and I think many of you may too is. Alive, and well in our nation's public schools well. During Cavanaugh s confirmation hearing senator Cornyn from Texas brought up the Santa Fe case and interestingly senator, Cornyn, was, the Attorney General, of Texas at, the time that the Santa Fe case was argued so, he, too. Was unhappy about the Santa Fe decision, and he complained about in fact he said it's stuck in his craw and, he. Pointed to the dissent, and said. You. Know that was the right had they had the right view of the Constitution. And he. Corn. And marveled at the fact that Americans you know can't speak about religion and public forum is what he said now.
Cavanaugh, Made no attempt to defend the Santa Fe ruling. But. He did gently correct, Cornyn's incorrect, assertion, about individuals, not being allowed to speak about religion, in the public forum II pointed to cases that did allow that so. Here we have a plain difference, between the judicial philosophies, I think of Kennedy, and Cavanaugh, and. My, strong sense is that it the case like the Santa Fe case came before the court with justice Cavanaugh on it, case. Like that comes up that have come out a different way both because Kennedy has, now been traded for Cavanaugh, and because O'Connor was. Earlier traded for leader if. You will well, now let's move beyond the public school context. I've been talking solely about public schools up till now in terms of religious expression, Kennedy. And Cavanaugh seem to be largely on the same page regarding government's. Role and religious expression, beyond, the public schools, both. Seem to read the First Amendment to basically, support. Religious. Displays, or messages, that are sponsored by government, if they aren't clearly, preferring, one religion, or another although. That can become, you know dicey, when you're looking at Ten Commandments displays for example I'm, depending, on how they're they're, configured but. Whereas Kennedy was often in in. Dissent. On such rulings the presence of Alito and now Cavan on the court could lead either, to the reversal, of those decisions, or watering them down now, since we're talking about the Ten Commandments I just can't resist telling you a quick story you. May recall that several, years ago. There. Was there were two cases pending at the Supreme Court dealing, with Ten Commandments displays and whether they were constitutional. Everyone. At the time was trying to guess how they would come out and at the time justice O'Connor was the focal point of attention and so people were thinking about her as a Swain justice, and thinking about how she often, liked to split the difference in cases, come out somewhere in the middle and this, prompted a law professor Jack, Balkan, to, confidently. Predict, that, justice, O'Connor would strike, down five, of the commandments, and uphold. The other five commandment. Thankfully. Professor, Balkan was wrong about that. Let. Me just mention quickly mentioned two other issues in this ball park like, Kennedy Cavanaugh, believes that the Constitution, requires the government to give religious individuals, and organizations, equal. Access, to government property. And facilities, for their speech so. When a public school opens up its facilities, for community, use on the weekends, or after hours that religious groups should have the same right as secular, groups to come in and use, the property and that's an important, way that the court has, ensured, that religion can play a robust, role in public life and so. That's one principle now I'll just note in passing if this is in your head ringing, that. The it, has been discussed. By some justices, the court including Justice John, Paul Stevens who, tends to be pretty separation, Asst that, when a high-ranking, government official. Talks, about their personal, religious beliefs like the president, for example that. We don't roll that unconstitutional. We understand, that, the president is talking about their own personal faith, as well. As you know serving in this official capacity, so. We've been talking so far about religious speech let's now switch.
To. Talk and government, sponsored, religious, speech, including. Some endorsement. What about money government. Financial, aid government subsidized religious, activities, and messages let me just touch on this quickly in. His writings and during his confirmation earrings. Kavanagh. Said. That the Constitution supports. A right for, religious people to, participate in, public, programs on an equal basis, as non-religious people. So. Here he needs programs, of financially. As. Well as other kind of programs and, I. Think the, principle, that religious organizations should. Be able to compete with non religious, organizations, on. An equal basis, for government aid for secular activities is. Increasingly. Non-controversial. And. Let me just give you an example that my friend professor John deullyeo the, first director of the White House Office of faith-based and neighborhood partnerships, said. He said the st. Vincent. DePaul Center, should not have to change its name to the mr. Vincent, DePaul Center and harder, to get money for his secular activities well, that's the part that's pretty, agreeable. Now there there's some there's more complication, than that but I'm gonna leave it there for now so. We're talking about government funding, grant. Program. For secular activities feeding, the poor for example getting. People off, welfare and on to work but. This principle often, also sometimes, means and I think Cavanaugh believes that it means that the government must allow can, or must allow religious, groups to use government grant money for example to pay for religious activities, as well. As secular. Activity, so let me give you an example here say a faith-based, group aims. To get people off drugs by. Having, them read the Bible and participate, in worship, can. They get government, grant and use that money to. Pay for the Bible. Study and the worship and to weave that into, you.
Know A secular, government program. And as, I understand, Kavanagh is perspective, his answer is yes and. So. Here is another but, this is actually a place where Kennedy and Cavanaugh seem, to be in the same ballpark although, it does seem that Cavanaugh seems to push, a little bit beyond Kennedy, as far as I can tell but I'm I'm certainly these issues will come up and we'll hear more from Cavanaugh. Now, this perspective, even, though Justice Kennedy has, been and. Cavan are in the same ballpark it, has been the minority, on the court to date with, regard to direct, funding, there's a difference when we're talking about vouchers. And we can talk about that if you wish later but. This perspective, on. Disallowing. Government. Grant money to be used for, religious. Activities, has been the majority position narrowly. So because justice O'Connor swinged. Over. With the more liberal justices and. Put her foot down there. Now. That Alito, has a placed O'Connor. And Cavanaugh. Kennedy, we may have a different result, finally. Just another look at, another. Principled free exercise principled free. Exercise is very important, right. In our country, it is, contentious. In some ways today but at its foundation continues. To bind people, together that, everybody ought to be able to practice their faith without. Unnecessary. Governmental. Interference. But. Let's look at one particular case, here, a case, that Cavanaugh decided, when he was on the DC Circuit Court of Appeals and the case is called priests, for life versus, the Department of Health and Human Services and, it, involved the contraception, mandate of, the Affordable, Care Act often known as the ACA or Obamacare you may have heard of this, mandate, it. Generally, requires health, insurance, coverage and employer sponsored health, plans to cover preventive, services, without cost-sharing. And that include this is for women like breastfeeding. Support counseling, well-woman visits, mammograms, and contraceptives. That are approved by the FDA and. This. Mandate, was very controversial, if you remember just a few years, ago and the challenge, was for the Obama administration, to try to accommodate religious, objectors to this proposal, while, still getting two women working for objecting. Employers. The. Coverage, to which they were entitled under, federal law and. At, the time that Cavanaugh, considered, this case agency. Rules exempted. Houses of worship from having to provide this coverage because. They knew that they might have objections, like Catholic churches, and the rules also accommodated. Other, nonprofit. Religiously, affiliated organizations. Like religious hospitals, and schools, and. After, the Supreme Court ruled in the Hobby Lobby case closely, held for-profit. Corporations. These. Entities didn't have to correct a contract. Arranged or paid for or refer for contraception, coverage if, they had religious objections, but the federal government still got women working for them the, coverage through another means mainly, insurers. So. This. Plan however for, this religiously, nonprofit, religiously. Affiliated in profit it wasn't good enough for some of them and they sued over it and. Under. The Religious Freedom Restoration Act, which is a federal statute actually, not, and. They, objected, part of their objection, was to filling out the form to actually, signal. To the government that they wanted the exemption. They, said that by doing that they. Were becoming complicit, in the issuance of the contraception, coverage to, their employees now, the DC Circuit, rejected that, claim and said look, we respect your religious beliefs but it is the law that requires, the coverage to go to your employees it's not your. Filling. Out this form filling, out the form lets us know that you want the exemption but the law secular. Law requires, the coverage to go to your employees well, this came, before as I said the DC Circuit and it actually got we heard by the entire. Court, not just a three George panel and justice. Cavanaugh dissented, from the ruling of the of the court he, said that under rifra.
The Religious Freedom Restoration Act, judges. Must defer to the challenger's religious, views even on these legal, issues and there, be he said submitting the form is itself an act that contravenes. Their faith and thus the court must find, that their faith was substantially. Burdened under the law which is the first prong of the Religious Freedom Restoration Act, now. Justice Kennedy's views on as precise issue were not, clear. Because he didn't have to squarely face it. So. We're not we don't know exactly how they compare, but why is this issue important, because, as I said at the top religious, exemptions, are a very important. Issue to many people they're controversial. In some settings. Including, in the when they have to do with women's reproductive rights and so, the court will I think undoubtedly, decide, decisions. About religious, exemptions, so Cavanaugh's, views may, really matter on these. Decisions. So. I've. Noted, where Kavanagh positions, some, of them compared. To Kennedy's and some places where he breaks with Supreme Court precedent let me just close by offering, a few thoughts in my own about. Respectfully. What I think Kavanagh gets right, and wrong about the Constitution. I think, Kavanagh gets a constitution, right when he says that the government should not prefer one faith over another I also. Appreciate. He the comments he made at his confirmation hearing, about looking for win win solutions. When we have competing, human rights so, how can we you, know get the coverage to the women that wanted of contraception, coverage while, also honoring religious, objections, although I differ, with his analysis, on the. Case that I mentioned his specific analysis. Also. During his confirmation hearing, Kavanagh said and I quote he, was quote he was quoting, Justice Kennedy, from the masterpiece cake shop decision, Cavanaugh. Said saying. The days of treating gay and lesbian Americans our gay and lesbian couples as second-class citizens are, inferior. In dignity or worth or over in the Supreme Court Kavanagh. Added that's a very important statement and I'm glad he said that I also. Think Kavanagh, gets the Constitution right when he says the general that the. Constitution, generally requires the government to give religious groups equal access to government property, and facilities, for their speech. Respectfully. However I think Kavanagh gets the Constitution, wrong on some other points, in my. View government-sponsored, religious. Messages, as well as government-funded, religious, activities, are basically, unconstitutional. They, harm both freedom, and faith in my view governmental. Speech endorsing religion violates, the conscience, of every, American, by taking a position on religious. Mathers something that the government is not supposed to do such. Speech also violates, the command of neutrality among. Face I would argue because when, the government sponsors, religion, it always, picks and chooses right. It doesn't sponsor, them all equally. Usually. The majority faith, is preferred, and other. Faiths are discriminated. Against, and this, creates not, de jure by law preferences. But de facto preferences. Depending on where you live in the country if. You live in Texas and maybe, evangelical. Christians if you live in Utah it may be the, LDS, Church if you live in some, parts in New York it may be something, else, well.
So. I believe, that not only does the government. Do. Something. To violate everyone's, conscience, when it backs faith. If you will, and. Not only do the face that don't receive, the, the government's, backing suffer. Because they're discriminated, against, but, I also believe, that the, religion, the government, supports, also, suffers, I can't. Say it better than, my ancestor, Baptist pastor John Leland did back in 1804, pastor. Leland said and I'm quoting here experienced. The best teacher has, informed, us that the fondest, of Magistrate's, to foster Christianity, has done it more harm that all the persecutions. Ever did and he, oughta net. Persecution. Like a lion, he said tears the Saints to death but leaves Christianity. Pure state. Establishment. Of religion like a bear hugs, the saints but corrupts, Christianity, and reduces. It to the level of state policy, in short. In my, view government support for religion warps, faith and Rob's, it of its prophetic, power to, stand independent. From, the government and to challenge, the government from, a position of independence. And non. Subservience, and, non. Corruption, I would say also. What the government finds it regulates, even if what it finds this religious, religious. And depending, on the city or town government subsidies, for certain, sacred texts, are going to generate, fierce, political opposition, it's, just going, to happen so. In short I think if the courts break swift precedent, in these ways it will violate the rights of conscience invite government, meddling in faith and result in de facto preferences, for some pace over others and finally. Why I very much agree with Kavanagh exercise. Of one's faith, is. A robust, right under. The Religious Freedom Restoration Act. I, think. That he, has the precedent. Of the Supreme Court wrong and Congress. Is intent with riff were wrong in his interpretation, of the substantial, burden test. Certainly. Religious, beliefs should be given significant. Deference but, I think it's a mistake to say that anything that seems like a burden, to a religious person should. Necessarily be. Deemed, a. Substantial. Burden under law, legal. Judgments, I think can and should continue to be made by the court now, to be sure court shouldn't attempt to determine whether a law imposes, substantial religious. Cost then, it's going to get in areas of saying this is religion plausible, is it rational how. Much cost, is this religiously, that should be off-limits under, the Constitution, but, courts can and should, determine, whether the law imposes a substantial, burden on religious exercise, as a, legal, matter and courts, can do so by relying on secular law including, Supreme Court precedent and, I, believe religious, exemptions, are valuable, and often.
Needed, But, I'm also concerned, about cases, that would improperly, use, free exercise claims, to blow gaping. Holes in our nation's, treasured, civil rights laws, so. I think there should be a balancing. Test for, religious exercise, and competing, interests and claims but, not a blank, check we. Need to have that healthy balance of competing, interests so. Let me just close by quoting another, swing Justice Justice, Sandra Day O'Connor, I didn't, agree with her about everything, but I always respected. Her and I especially, appreciated. What, was her swan, song at the Supreme Court her, final, opinion on the court that, was on church-state issues, and so, I'm going to read you a passage. From, her, swan, song opinion. Justice. O'Connor said reasonable Minds can disagree about how to apply the religion, clauses in a given case but. The goal of the clauses is clear. To carry out the founders plan of preserving, religious liberty to the fullest, extent possible in a pluralistic society. By. Enforcing, the clauses, we have kept religion, a matter, for individual. Conscience, not, for the prosecutor, or bureaucrat, at a. Time when we see around, the world the violent, consequences of. The assumption, of religious authority by government. Americans. May, count themselves fortunate our regard. For constitutional, boundaries has protected, us from similar, travails while allowing private religious, expression. And exercise, to flourish, Americans. Attend their places of worship more often than do citizens of other developed nations and describe, religion as playing an especially, important, role in their lives, those. Who would renegotiate. The boundaries, between church, and state must. Therefore answer. A difficult. Question O'Connor. Said, why. Would we trade a system, that has served us so well, for. One that has served others so poorly. End, of, quote in my. View Americans. Should not trade, the system that has served us so well, instead. Americans. Should work diligently. To keep it. Great. Let's. See I thought this gentleman right behind you and then will come. Am i okay, what, did I say. Okay. So thank you for that question so the gentleman is referring, to a, what. Is sometimes. Described, by the Trump administration as. An, unofficial. Evangelical. Advisory, board although sometimes it's, it. Seems to be official but then most. Times they, call it unofficial and apparently, was organized, during the campaign, and has. Carried over in some form or fashion into, the administration, I really. Can't tell you I I don't have much visibility, into the administration, about how. That group operates, or what they do so Americans, United has, an, advocacy, group on separation, of church and state and religious. Freedom has. Asked. For transparency. About that group and. You. Know I I have registered, concern, about it both about lack, of transparency, because, we also during, the Obama administration had an advisory group but it was people. Of all faiths and none were represented. Or as broadly as we couldn't a 25 member group that rotated. Three. Times. But. We were subject. To and tried to make all our reports transparent. And our meetings transparent, our calls so people could come and participate and, I think that's the way it should be and also, I think that, it's problematic even. Unofficially. From at least an appearance point of view if you, have a. Body. Connected. To the administration. That's, only, four members of you, know one subset, of one faith, that. Just you know that does not send a good signal so, I think what's, happening, there it's they've requested that. There be some more transparency. And we'll, see whether, that happens. Oh. Wow. Super, well thank you. Absolutely. A valued. Colleague you all did Yeomans, work and we are still. Profiting. From your work in those early days so thank you thank, you so much, I'm Plessy here and then back, there yeah. Yeah. Great, question I hope everybody could hear it so. You have a nice lab boys so. You. Know I think that there's, no doubt in my view, that he is you know a fairly. Conservative. These labels. Don't always map well to the court but that he, comes from a perspective that probably would have more in common with, Cavanaugh. And not.
But. I, think, that. He, is very dedicated to, the court as an institution. And to its, perception, as, being. You, know a body. In Washington, that is not about politics, so I, don't know if you caught earlier this week he did a talk at somewhere. In Minnesota I believe and you. Know he doesn't do that many talks and, he. Was. Out in the public at a university, he was in a Judicial, Conference, stressing. The, need for, the court to be independent. And to continue. Always with. Its independence, so I don't know that he will necessarily become. A swing, justice, but that's not the only way, to try, to get. At some of these dynamics. You can get at it in part by deciding which cases, you take and which, you don't, maybe. Some more divisive, cases, you don't take ones you know I mean they're, gonna take some but maybe not very many, and. Then it, can be a kind of Governors like how many do you take how, you know during how, many a term and, and so, I think, you, know with some. Variations. I definitely, disagree with the chief on some cases. Think he's gone wrong on some important, cases but, I respect, the fact that he's he, is dedicated. To the court, as an institution, it has the intention of trying. To keep it above politics now we'll see how successful yes. Yes. Yeah, I mean that was that's a that's an example so thank you this is an excellent question yeah. Yeah. Are. You on the law school or the good school. All. Right all right so so the employment referring, to the Employment Division versus, Smith case which is decided in 1990. And I didn't go into this and my top but I'll do the very quick, version here the, court before, 1990. Had, largely. Largely. I'm using some weasel words here because it's more complicated had. Applied. A very rigorous test, the compelling interest test to free exercise claims, prior to 1990. And said, you know it doesn't matter if the government's trying to target religion, even, if it you. Know does so by inattention, tell, us a Jewish boy he can't where there's a no hat rule at public school so the Jewish boy gets hit by that because he wears a yarmulke, and they're, just trying to get rid of baseball, caps so, what. Test gets used and now when the compelling interest test was used that Jewish, boy was in much, better standing, and luck the. Afterwards. Employment, decision Employment, Division four Smith authored, by Justice Antonin, Scalia interestingly. Said. No no no we're not doing that compelling interest test anymore it makes everybody, a law unto themselves on, religion, we're not doing that we can't do it in such a diverse country at least as a matter of what First Amendment requires and. So, we're just gonna look and see does. The government. Target, religion, is it regulating, religious activities, when it's not regulating, similar, secular. Activity so it was a much lower standard of protection for, free exercise, and one which i think is actually wrong but. So, there was the reaction to that and that's how, the Religious, Freedom Restoration Act, got past that I just talked about but of course there's some, controversy, as thereto today so. Will. The. Court vote to overturn Smith, it's, a very interesting question and I don't think. Cavanaugh. Has necessarily tipped. His hand on this, he's been very stout. About interpreting. The Religious Freedom Restoration Act, and also the free speech clause as you say to do some of that work. That he probably would have done, under the Free Exercise Clause, but. Interestingly in. And. Now I'm blanking on which case it was but, I believe it's justice, Gorsuch and one of the opinions from the last term you know reference, the fact that Smith, continues, to be controversial, in some quarters and we know that Alito, you know has, some you know reservations.
About It too so that. Could happen but I would think in, part. My guess and this is just a guess because of if that, were to be where the justices, five of them or more might, come out as a matter of interpretation, of the First Amendment that it, they might that might be something that's that, Chief. Justice Roberts might not want to put on the plate right away even if they do have the five to go in that direction it's. Just. Some guesswork, there. Other. Let's, see yes. Please. Wow. No. Thankfully, so. Yeah. Well. It's an interesting it's I'm glad to know that you've had such a close. Experience. With the law because that I mean not everybody is a named plaintiff in a court case so that's certainly an interesting. Experience to have in your family, the. Point. Where I deal. With these issues and my work is mostly, in the free exercise, realm in. Terms of people objecting, to abortion, no way to have participation, with. That, then, how can you know the Free Exercise protect. Them so that they don't have to participate in it and it's a different question about, what, state policy, should be yeah, thanks, I'm. Sorry yeah Pamela. Yeah. So, Pamela brings up the masterpiece, cake shop case which most of you have probably heard of that was her last term that. Dealt. With a civil. Rights law in Colorado, a state civil rights law that, applies to public accommodations, including. Retail businesses, including. This cake shop owned by Jack Phillips who. Objected. For. Religious, reasons to, complying, with the civil rights this. Civil rights measure and let me back up and say why the civil rights measure says that all public accommodations. Have to be equally. Open to people, and. There can be no discrimination, based. On among, other things sexual. Orientation, so a couple comes in and, says. You, know we'd like to buy a wedding cake and they, start to talk about the cake and find, out that the cake is for two men and then, Jack Phillips says I'm sorry I can't I'll sell you brownies, or other things in the store but I won't sell you a wedding cake because of my religious, beliefs they. Leave they. Sue, Phillips. For violation. Of the Colorado anti-discrimination. Act, Jack. Phillips defends. By saying the, First Amendment's. Free. Exercise. And free speech clauses, mean, that I should have I know that there's that state law there but the Constitution's, trump state law and I, should be exempted. From that state law along with my bakery, that I own because. Of my religious. And free expression beliefs, it was both of those things as you recall. And. There, was no. That. That was how the case was litigated on the basis of the person and that's free speech and free exercise clause so, the court ended up ruling, narrowly. In, favor of. Justice. I mean in favor of Jack Phillips and his bakery, and now am I saying nearly I mean on the merits, because, they did not decide, the, question, about whether, in another. Case. The. Bakery, like this might be an exception although they in some of the opinion, they're pretty stout about saying that there there needs to be non-discrimination. That's been the presumption and that's what we've honored through the years so they put they put some markers down there but, but. What they found instead is Pamela suggests, was some comments, by. Commissioners, on the state Civil Rights Commission, who had adjudicated. The, claim at a lower stage and, had. Said. Things like. You. Know this I won't, get it exactly right but it's something about you. Know religion, has been responsible for ills over. The years including the yeah. The, Holocaust, and, these other things and and so, there. You know Kennedy and, other other justices. Indicated. That there was some hostility shown, to religion, because they were the adjudicators, making, these statements and then there, were some elements and I won't go into because we don't have time but there were some elements of possible. Different treatment, of bakeries. That had, objected. To putting anti-same-sex. Marriage messages. On cakes and ones, that had objected, putting cakes. For same-sex marriages so you, know I think that I can, see where that comment.
Was Not you. Know not neutral, not the way that that, a person. Should handle, it on civil rights commission they, should we shouldn't be in, government, passing. Judgment, on saying. Your religion is bad or I presume, that it's in bad faith that's an insincere, and there were elements of that in the comments, so, I think that's the wrong place for government to be now that doesn't mean that government grants all the exemptions including, the exemption in this case which will be a litigating other case but rather, that. They say the government should government, should do is look, the law applies, in this way and because it applies in this way you. Don't have an exemption but. Steer way. Clear. Of making, comments. Evaluating. Somebody's. Faith or disparaging. Somebody's, faith so, that's, where I come.