Justice Brett Kavanaugh appeared last week at Catholic University’s Columbus School of Law for a colloquy with Professor Joel Alicea. Among many topics, he spoke both of specific areas of jurisprudence, such as how overturning Chevron deference was “a course correction,” and, as I highlighted on X, how the ability to withstand intense pressure is critical to being a good judge.
Also worth noting is his recognition of the Supreme Court’s numerous recent decisions protecting religious freedom. I have discussed the religious liberty Court on a number of occasions. When Professor Alicea brought up that topic, Justice Kavanaugh replied:
So I think that’s one area in the six years I’ve been on the Court that I think we’ve made in my view correct and important strides. And I think one of the principles that’s been reinforced and elaborated on is that discrimination against religion—against religious people, against religious speech, against religious organizations—is not required by the Establishment Clause and indeed is prohibited by the Free Exercise Clause and the Equal Protection Clause. And so in cases like Trinity Lutheran, Espinoza, Shurtleff, Carson, there would be government programs where religious groups or religious people or religious speech would be left out, often because local officials, state officials, would think, . . . let’s make it concrete: We have an open gym policy at the public school. Anyone can use it after hours. Oh, but a religious group wants to use it. We can’t allow that because that would be an Establishment Clause violation. And we’ve made clear, I believe, in these cases and others, that no, that’s wrong, that is discrimination against the religious group, the religious person, the religious speech, and that is not required by the Establishment Clause. That’s a misreading of our history and tradition, and that’s not required by the Establishment Clause.
Indeed, it would be unlawful under the Free Exercise and Equal Protection Clause to tell someone, Oh, you want to come in and have a secular event, that’s great. You want to come in and have a religious event, no. That’s discrimination against religion. We saw in some of the Covid cases that were quite important in my view as well. So I think we’ve reinforced—maybe built, but certainly at a minimum reinforced—a critical principle of religious equality and religious liberty in those cases and hopefully corrected some of the confusion from litigation-shy local attorneys who might think, Oh, can’t have a religious flag flying in front of City Hall in Boston. That was the Shurtleff [case]. We can have a flag for everything else, but if it’s a religious flag, that’s a problem. We said no, that doesn’t work. That’s discrimination against religion. So then I think we’ve made some good progress on that, and I feel very proud of that, for recognizing the constitutional protection of religious equality and religious liberty.
The program is worth watching in its entirety for the justice’s insights on a variety of topics—and for the evident joy he has in his work. It is good to see a man whom the Left tried to destroy doing his job, never letting life’s slings and arrows prevent him from upholding the Constitution faithfully and cheerfully.