Justice Amy Coney Barrett’s church-state jurisprudence

Justice Amy Coney Barrett took the judicial oath October 27 to become the newest member of the U.S. Supreme Court. She is only the fifth woman in history to serve in the role.

President Donald J. Trump nominated Barrett to the Supreme Court on September 26, eight days after the passing of Justice Ruth Bader Ginsburg. Republicans in the U.S. Senate granted the president’s nominee a hearing, something that was not done in the last election year when a president nominated a Supreme Court justice. President Barack Obama’s nomination of Judge Merrick Garland in March 2016 never received a Senate hearing.

In the midst of partisan rancor on Capitol Hill, the nomination went forward. BJC researched and prepared a report on Barrett’s church-state record in advance of her expedited Senate hearings.

A former professor at Notre Dame Law School, Barrett served as a judge on the 7th U.S. Circuit Court of Appeals for three years. Her record included more than 600 appeals court cases and a bevy of scholarly writings on legal topics, according to BJC’s report.

During her time as a judge, Barrett only participated in nine cases that involved church-state or religious liberty issues, most of which were unremarkable unanimous opinions. While she did not write any opinions in those nine cases, two cases were notable.

She joined the majority opinion in Illinois GOP v. Pritzker, which challenged the COVID-related prohibition on political gatherings in light of the exemption for religious gatherings. The court in that case upheld the distinction.

In Grussgott v. Milwaukee Jewish Day School, Barrett joined a majority opinion that applied the ministerial exception to deny a suit brought by a teacher claiming wrongful termination because her job included religious functions. Earlier this year, the Supreme Court reached a similar conclusion in Our Lady of Guadalupe School.

With a slim record on church-state issues yielding little insight, BJC’s report noted that Judge Barrett’s alignment with the views of her former boss, Justice Antonin Scalia, provided troubling concerns about her potential approach to religious liberty questions.

Barrett indicated previously that she would try to emulate Justice Scalia, once saying that “his judicial philosophy is mine, too.” Justice Scalia wrote the notorious decision in Employment Division v. Smith in 1990, which is widely seen as undercutting the free exercise of religion. The Smith decision was the impetus for the bipartisan passage of the Religious Freedom Restoration Act of 1993. It is unclear whether Judge Barrett approves of Smith, even after the hearings.

There was plenty to question Barrett about in terms of her judicial philosophy when she sat for days of questions from members of the Senate Judiciary Committee. BJC sent its report to the committee members in advance of the hearings, and it included a list of proposed questions for Barrett.

But, as BJC pointed out, there was no reason to include inquiries into Barrett’s personal religious views. Religion is mentioned only once in the original text of the U.S. Constitution: Article VI says “but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”

During the confirmation hearings, BJC staff members listened to learn more about Barrett’s views on the Free Exercise Clause and the Establishment Clause of the First Amendment. Both clauses are important in protecting the free exercise of religion and guarding against its establishment or promotion by the government.

“We see both clauses as equally important in supporting religious freedom for all,” said BJC Executive Director Amanda Tyler. “But, more and more, we’re seeing a less balanced approach when it comes to constitutional interpretation, and that’s what we were looking for when it came to these hearings.”

Tyler said it’s important to hear a nominee’s understanding of how religious freedom is protected by the First Amendment.

“What we saw during the hearings was a more shallow understanding of how religious freedom works,” Tyler said.

During an exchange with Sen. John Cornyn, R-Texas, Barrett mentioned her interview with Justice Scalia many years ago when she discussed the First Amendment. During that interview, she said she fell down a “rabbit hole” about the difficulty in balancing the two clauses, and she said that she didn’t have a better answer now.

“This is a much more consequential job interview,” Tyler said.

BJC General Counsel Holly Hollman noted that exchange was particularly troubling because it came in response to a discussion about government-sponsored prayer in schools.
“It’s not that difficult to say that we protect free exercise, and part of how we do that is to keep the government out of religion and not let government itself advance religion,” Hollman said.

“Once most people talk more in depth about what government-sponsored prayer in public schools means — that the school would have control — they realize that doesn’t help religious freedom,” Hollman continued. “Instead, by enforcing the Establishment Clause, you protect religious freedom for all, and you ensure that no student is treated differently, giving them all equal access to the public schools without regard to religion.”

Tyler pointed out that prior Supreme Court nominees, including Justice Brett Kavanaugh, articulated a clearer understanding of how the religion clauses work during their confirmation hearings.

“That kind of statement and understanding — that the Establishment Clause supports religious freedom — is a statement we never heard from Barrett during her hearings,” Tyler said. “And I would feel a lot better about her confirmation to the Court had we heard a statement like that.”

Later in the hearings, Barrett said, as an aside, “We have to be careful about the Establishment Clause,” noting that the government can’t establish a church.

“That’s a missed opportunity for her, as far as really being able to express how carefully our country and the First Amendment protect religious liberty,” Hollman said. “Certainly, the Establishment Clause does more than prevent the government from establishing a church — it plays a crucial role in upholding religious freedom for all.”

In response to a question from Sen. Josh Hawley, R-Missouri, about whether religious people can be singled out for disfavor, Barrett also did not express a thorough understanding of the Free Exercise Clause.

“She missed an opportunity there to simply say, ‘no,’” Hollman said, noting that there is case law that points out that you cannot single out religion for disfavor, as BJC said in response to President Trump’s iterations of the travel ban that singled out Muslims for disfavorable treatment.

“Maybe she was hesitant because she was acknowledging that sometimes people argue they are being singled out for special disfavor but they are really being treated like others,” Hollman said, giving the example that faith-based groups that use government money have to follow the same nondiscrimination rules as others using government money.

Barrett was confirmed to the Supreme Court by the U.S. Senate with a 52-48 vote, and she began hearing cases on November 2.

For more on the Barrett confirmation hearings and her church-state record, you can access BJC’s report and listen to Respecting Religion on the BJC Podcast.

This article appeared in the Fall/Winter 2020 edition of Report from the Capital. You can read the entire magazine as a PDF or as a digital flip-through edition.