Judging A Judge: Where Does Obama’s Supreme Court Pick Stand On Religious Freedom?

Garland has authored just one opinion in a case involving religious freedom claims during his 19 years as a federal judge.

Now that President Barack Obama has decided to nominate Judge Merrick Garland for the U.S. Supreme Court, a lot of people are wondering where he stands on various First Amendment issues.

But when it comes to opinions regarding religious freedom, Garland’s record is rather thin. As Religion Clause blog noted yesterday, Garland has 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. Religion Clause said that opinion didn’t really get into the meat of the First Amendment, instead focusing 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 U.S. Court of Appeals for the District of Columbia. 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. Circuit Court of Appeals, 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 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 access it through third-party insurers. (This issue will appear before the Supreme Court next week in Zubik v. Burwell.) The denial of the rehearing was procedural, and Garland did not write to express his views.  

As Americans United Executive Director Barry Lynn said yesterday, “We hope that more information will be revealed about [Garland’s] positions as he proceeds through the vetting process.”

Of course, it remains to be seen whether Garland will ever actually get a vetting. But if he does, Americans United will do all it can to get some pointed questions about separation of church and state before him.