President Trump’s pick of Judge Brett Kavanaugh for the Supreme Court is not surprising. Though he is less extreme than some others on the short list, Kavanaugh appears intent on rolling back abortion rights. We know this from past opinions and law review articles he has written.
But we know less how he might rule in regards to LGBTQ rights or immigration – two issues that will inevitably soon be addressed by the Court. Masterpiece Cakeshop did not clarify the appropriate balance between the free exercise of religion and equal protection. It was written so narrowly to address the specifics of the case that a broader legal principle cannot be found. Likewise, immigration issues are winding their way through the federal court system. On July 9, a Los Angeles Federal Judge, Dolly Gee, issued a strongly worded opinion condemning the Trump Administration’s zero tolerance family separation policy. Two months prior, another Justice for the Northern District of California rebuked the Federal Government’s violation of federalism in its attacks on sanctuary cities. Each of these cases will be seeking certiorari before the Supreme Court in the near future.
And, just as he has done with past abortion cases, we can expect Kavanaugh’s faith to play a large role in how he interprets the law.
During his acceptance speech in the White House, Kavanaugh spoke passionately about his work with Catholic Charities and how his conservative Catholicism has informed his career. It was moving. And Kavanaugh is correct in pointing out the role Catholic Charities has played in nurturing the oppressed throughout American history. But one Catholic charity he might have had in mind is Priests For Life, a group that sued for a contraceptive exemption from the Affordable Care Act. Kavanaugh wrote the appeals court decision in Priests for Life v. Burwell in support of exemptions for nonprofits and businesses based on personal conscience saying:
“When the Government forces someone to take an action contrary to his or her sincere religious belief . . . the Government has substantially burdened the individual’s exercise of religion.”
Though Kavanaugh was speaking specifically about contraception, it is easy to see how similar reasoning could be used in a case involving denial of goods and services based on sexual orientation or gender identity.
The framing is key. Here, Kavanaugh provides insight into his thinking by casting the denier of service as a victim of government overreach. Based on his deeply held religious convictions, Kavanaugh views those who want to discriminate more sympathetically than those who are discriminated against.
However, as some older Catholics might remember, John F. Kennedy and Bobby Kennedy supported civil rights for African Americans because of the discrimination they faced as Irish Catholics, especially in the political arena.
If Kavanaugh is confirmed, six of the nine justices will be Catholic. But not all Catholics apply their faith in the same way. Any shrewd litigator will need to consider Catholic theology and tradition in pleadings before the Court. When it comes to LGBTQ rights and immigration, applying Catholicism may seem like a cumbersome abstraction, but both liberty of conscience and the care of immigrants have strong roots in Catholicism.
If a Justice Kavanaugh needs a specifically Catholic justification for the protection of sanctuary cities, for instance, he can find it in the history of Los Angeles. During the Reagan Administration, another period of heightened hostility toward Hispanic immigration, a priest named Father Luis Olivares essentially began the modern sanctuary city movement. Building on the Catholic Church’s history of using Cathedrals and parishes as sanctuaries for the oppressed and refugees, the outcast and diseased, Father Olivares envisioned Los Angeles as a city that could shield the vulnerable from a heartless ruling class, much like the role the Church had played throughout medieval Europe. Unbeknownst to many, those being persecuted could run into a Cathedral or parish, shout out the word “asylum,” and the priest or monk would immediately shut the door to protect them.
It was Father Olivares’ faith that inspired his empathy toward those seeking a better life – and there is potential to apply that faith to today’s mothers fleeing violent abuse and drug wars only to have their children forcibly detained.
Similar thinking informs catholic or universal attitudes toward liberty of conscience. Much of the tenets of modern democracy derive from religious struggles in European history. Long before democratic revolutions swept through Europe demanding political equality, the indiscriminate extermination of the Bubonic Plague challenged deeply held cultural assumptions about natural inequality and God-ordained hierarchy. As peasants fled outbreaks of the plague, they, too, sought refuge in the houses of their lords and The Lord only to find the Plague ravaged prince and pauper, priest and prostitute alike. Among the sight and stench of the disease, it became harder to believe the strict class structure of feudalism and birthright of kings was God’s will and the theological underpinnings of an unfair economic system quickly crumbled.
The invention of the printed press enabled the ideas of the Reformation of the Church and words of the Bible to spread throughout Europe. Before these new interpretations of holy scripture, the Catholic Church held a cultural and political monopoly.
Protestantism’s challenge to Catholic political hegemony produced centuries of bloody civil wars across Europe. The most violent – the Thirty Years War among Lutherans, Protestants, and Catholics – produced the Treaty of Westphalia in 1648. This treaty was monumental in the creation of the modern nation-state because it was the first governing document to recognize some form of religious freedom. Each denomination had fought for the political dominance of their version of Christianity — but accomplished only mass casualties.
In the end, nobody won. But the Catholic Church lost its political exclusivity, forcing it to reconsider its use of government to force compliance with its theology. The Treaty of Westphalia marked a nascent version of our cherished freedom of religion. This first codification of state neutrality toward a preferred faith ultimately became the Establishment and Free Exercise Clauses of the First Amendment.
The first ten words of the Bill of Rights is called the Establishment Clause. It reads:
Congress shall make no law respecting an established religion.
An established religion is the official religion of a country. The official religion of the UK is the Anglican Church. The official religion of Italy is Catholicism and of Denmark is Lutheran Protestantism. The official religion of the United States is nothing because our founders were trying to do something different and reflect the lessons of history.
But the framers of the Constitution did not merely say America would lack an established religion. Rather, they
prohibited government from respecting an establishment of religion. This means we cannot have an official faith or even pretend that we do. The removal of nativity scenes and monuments of the Ten Commandments in public spaces is not some contemporary suppression of religious expression. Our founders recognized that a democracy cannot function if one demographic is awarded privileged status so institutions of the state must remain nonsectarian.
The Establishment Clause is immediately followed by the Free Exercise Clause. It reads:
Or prohibit the free exercise thereof.
Herein lies the balance. The government may neither respect an official religion nor prohibit anyone from practicing religion in any way. The first is a limit on state action, the second is an expression of maximum
individual freedom. That individual liberty is not limited to formal religion. It includes a liberty of conscience for each citizen to develop their own understanding of transcendent truth and follow the right path for them even if faith is not part of the picture.
The free exercise of one’s conscience, guaranteed by the First Amendment, enshrines the negative right to reject the religious dictates of one’s community. This means conservative Christians can govern their lives and believe sincerely that homosexuality is an egregious sin — but other citizens are not coerced into obeying the proscriptions of others’ faiths.
These core tenets of democracy have been reiterated throughout American history, so much so that we have taken for granted that justices on the Supreme Court will continue
to apply them to new conflicts. But we also know, some legal thinkers like the Federalist Society apply these historical principles differently. Once Kavanaugh becomes the sixth Catholic on the Court – and it is likely he will be – advocates of benevolence toward immigrants and fairness toward sexual minorities will benefit from grounding their arguments in catholic tradition rather than opposition to Catholicism.
With all three branches of the Federal Government firmly in the hands of a party devoid of empathy toward the downtrodden, a little Catholic charity may be our saving grace.