Kavanaugh: Free Exercise Clause and Establishment Clause Generally Work Together

During his confirmation hearing on Wednesday, Supreme Court nominee Judge Brett Kavanaugh stated that as a general matter, it’s good to think of the Establishment Clause and the Free Exercise Clause “working together for the concept of freedom of religion in the United States, which I think is foundational of the Constitution.”

Kavanaugh said, “[W]e can, under the Religious Freedom Restoration Act, question the sincerity of a religious belief, meaning is someone lying or not about it, but we can’t question the reasonableness of it.”

Senator Ted Cruz (R-TX) then asked, “How would you describe the interaction between the Free Exercise Clause and the Establishment Clause, and are they at cross purposes in intention or are they complementary with each other?”

Kavanaugh responded, “I think in general, it’s good to think of them as both supporting the concept of freedom of religion. And in the Newdow case I wrote, I tried to explain some of those principles. But I think it’s important to think that, to begin with, you’re equally American, no matter what religion you are, if you’re no religion at all, that it’s also important, the Supreme Court has said, that religious people be allowed to speak, enter, participate in the public square without having to sacrifice their religion in speaking in the public square, for example, or practicing their religion in the public square. At the same time, I think both clauses protect the idea — or protect against coercing people into practicing a religion when they might be of a different religion or might be of no religion at all. … The cases that are Establishment Clause cases that don’t involve coercion that are some of the more –the  symbol — the religious symbols cases, as you well know senator, that’s a complicated body of law, but in each, probably, area that has to be analyzed in its own silo. But as a general matter, I think it’s good to think of the two clauses working together for the concept of freedom of religion in the United States, which I think is foundational of the Constitution.”

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