Religious Liberty Advances Via Kavanaugh and Colorado Cakemaker

By Hillyer, Quin | Examiner (Washington, D.C.), The, March 7, 2019 | Go to article overview

Religious Liberty Advances Via Kavanaugh and Colorado Cakemaker


Hillyer, Quin, Examiner (Washington, D.C.), The


Slowly but surely, the cause of religious liberty keeps retaking ground it had previously lost.

Twice this week, defenders of our First Freedom had reason to take heart from mini victories of sorts. Both mini-victories came more in the form of attitudinal trend lines than in actual substance, but still they are worth a cheer and a half on the familiar scale of three.

The first three-quarter hurrah comes in response to a concurring “statement” issued by Supreme Court justice Brett Kavanaugh as the court rejected what some had hoped would be a religious liberty test case. The other three-quarters comes in the highly welcome news that Colorado finally will stop harassing its now-famous traditional values cake artist.

Kavanaugh’s statement, joined by justices Samuel Alito and Neil Gorsuch, amounts to a reference point for future First Amendment jurisprudence. The case arose when the New Jersey state Supreme Court ruled that a program in which Morris County, N.J., provides grants for historic preservation may not provide such grants for religious buildings. Churches sued, arguing that by specifically disadvantaging religious buildings, and (apparently) only religious buildings, from an otherwise generally available grant program, New Jersey is engaging in unconstitutional discrimination against religion.

The Supreme Court decided not to accept the case for review, an apparent loss for religious liberty. Kavanaugh’s statement, however, explains why it wasn’t really a defeat. This was not really a good test case, he said, because “the factual details of the Morris County program are not entirely clear. In particular, it is not evident precisely what kinds of buildings can be funded under the Morris County program. That factual uncertainty about the scope of the program could hamper our analysis of petitioners' religious discrimination claim.”

In short, it wasn’t that the churches' central argument had no merit, but instead that the justices are looking for a stronger, more factually clear case on which to rule. …

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