Obama Supreme Court Pick Has Thin Record On Church And State

It’s imperative that members of the Senate Judiciary Committee closely question President Barack Obama’s U.S. Supreme Court nominee on church-state issues, Americans United said in March.

Judge Merrick Garland is Obama’s choice to replace Supreme Court Justice Antonin Scalia, who passed away in February. Garland has spent 19 years on the U.S. Court of Appeals for the District of Columbia. He clerked for former Supreme Court Justice William Brennan and is a graduate of Harvard Law School.

Research by Americans United’s Legislative and Legal departments revealed that Garland has not ruled on many church-state cases.

“Garland has a lengthy record of service on the federal bench, yet he does not have a clear record on the issue of the separation of church and state,” said Barry W. Lynn, executive director of Americans United, in a media statement. “We hope that more information will be revealed about his positions as he proceeds through the vetting process. What is clear, however, is that Judge Garland deserves consideration from U.S. Senate. That is why we urge the Senate to move forward with this nomination.”

When it comes to opinions regarding religious liberty, Garland’s record is sparse. Garland has apparently authored just one opinion in a case involving religious freedom claims during his 19 years as a federal judge.

That case, Ciralsky v. CIA, concerned a former CIA agent who said that he was fired because he is Jewish. But even that opinion focused mainly on procedural issues because the court believed the complaint itself was lengthy, redundant and combative.

Garland has, however, joined several opinions in more substantive religious freedom cases as part of a three-judge panel of the appellate court. Among those was Henderson v. Kennedy, a 2001 case in which the appeals court rejected a claim by a group of evangelical Christians who argued that a National Park Service rule blocking the sale of T-shirts on the National Mall violated their rights under the Religious Freedom Restoration Act.

Garland also voted to deny a rehearing by the full D.C. appellate court in the 2015 case Priests for Life v. United States HHS, in which a Catholic anti-abortion organization lost its challenge to the Affordable Care Act’s birth control accommodation for religious objectors. Under the accommodation, organizations with religious objections are not required to provide insurance coverage for birth control but must allow employees who want it to access it through third-party insurers. The denial of the rehearing was procedural, and Garland did not write to express his views.  

It’s unclear if Garland will get a vote in the Senate. Although a few Republican senators have called for holding hearings, the party’s leadership has stated that they will not consider an Obama candidate prior to November’s elections.