Who Will Protect Religious Liberty?

             The liberty principle for this Freedom Friday concerns freedom of religion. I have written previous posts about President Joe Biden’s promise to nominate a Black woman for the Supreme Court to fill the vacated seat of Justice Stephen Breyer. In those prior posts, I discussed the unconstitutionality of Biden’s promise. He should nominate the best qualified person regardless of sex or race.

Today’s post will be how his appointment will affect our religious freedom. Fortunately, someone qualified has outlined how three possible appointees may rule for or against religious freedom. Tanner Bean is an attorney licensed to practice law in Utah and Idaho. “His practice focuses on employment law, litigation, appeals and the intersecting areas of religious liberty and LGBT+ discrimination.” He outlines how their “past decisions, articles and speeches” may indicate how three possible nominees could decide any issue. J. Michelle Childs, Ketanji Brown Jackson, and Leondra Kruger are three of the possible women being considered. 

J. Michelle Childs currently serves as a federal trial court judge in South Carolina. Before being announced as a candidate for the Supreme Court, Childs was nominated by Biden for a seat on the U.S. Court of Appeals for the District of Columbia, a nomination that has been put on hold while her Supreme Court candidacy is pending. Childs is a member of the Catholic faith, the predominant faith of the sitting justices.

A search through Child’s court opinions demonstrates she has had several occasions to consider religious liberty issues….

… While these decisions don’t tell much about Child’s personal religious liberty thoughts, they do demonstrate her adherence to the law of religious liberty. Her decisions set forth appropriate case law, statutes and religious liberty tests. The same might be expected if she were chosen to fill Breyer’s vacancy.

Ketanji Brown Jackson serves as a federal appellate judge on the U.S. Court of Appeals for the District of Columbia. Before that position, she was federal trial court judge in D.C. Jackson has been associated with both Baptist and Jewish groups, although they do not necessarily indicate her religious preference.

Jackson’s court history doesn’t disclose nearly as many religion-related opinions as for Childs. However, two decisions stand out…. The appellate judge had made clear her ability to set aside her religious views when acting as a judge.

But what Jackson’s judicial record lacks in religious liberty cases, her public comments make up for. In Jackson’s confirmation hearings for her seat on the U.S. Court of Appeals for the D.C. Circuit, she was questioned about her past board membership of a school run by a Baptist organization with conservative views of sexuality and abortion. In response, while she did not commit to the school’s statement of faith, she said that as a judge, she believed in protecting religious liberty broadly. Jackson called religious liberty a “foundational tenet of our entire government.” If she takes Breyer’s position on the Supreme Court, we will see how that view manifests in hotly contested cases especially where religious liberty faces off with other important civil liberties.

Leondra Kruger currently serves as a California Supreme Court justice. Prior to being appointed to that court, Kruger was a successful appellate lawyer, having argued 12 cases before the U.S Supreme Court. Kruger has Jewish heritage, as her father was the son of Jewish immigrants. After Catholicism, the Jewish faith has the most presence among the members of the Supreme Court, including that of Breyer.

Of the three candidates reviewed here, Kruger’s judicial decision-making tells the least about how she would rule in a religious liberty case on the Supreme Court….

Yet Kruger has had high-profile engagement with religious liberty. She argued before the U.S. Supreme Court against the application of the First Amendment’s ministerial exception. The Supreme Court, in a rare move, unanimously rejected the position Kruger argued on behalf of the Equal Employment Opportunity Commission, recognizing the ministerial exception applied in the case at hand (the same case which Childs later applied…). While it would be hasty to assume Kruger would adopt the EEOC’s position in that case as her own, it could be indicative that she would be less friendly to religious claims than others.

In closing, Bean stated the obvious that Biden’s ultimate selection for “the Supreme

Court will be a lasting feature of the court for decades.” For this reason, he expects that the nomination process will be “contentious” and will feature religious liberty. I wonder how it will compare to that of Kavanaugh.