Supreme Court Justice Stephen Breyer, who confirmed his pending retirement at the end of January, frequently voted in favor of religious liberty during his tenure. Together with Justice Elena Kagan, he is widely credited with pulling the court’s liberal wing toward the middle; both often rule in favor of people of faith. In evaluating potential successors to Breyer, Tanner Bean looks at the track records of three likely nominees on questions religious liberty.
A search through Judge [J. Michelle] Child’s court opinions demonstrates she has had several occasions to consider religious-liberty issues. Of these, she appears to have dealt mainly with religious-liberty claims brought by prisoners. . . . [I]n one case, where she sat as an appellate judge by special designation on the U.S. Court of Appeals for the Fourth Circuit, she joined an opinion that found a prison had burdened a prisoner’s religious exercise, without justification, when he was denied a diet consistent with the teachings of the Nation of Islam.
Judge Childs has also resolved cases of religious land use and religious speech on procedural grounds. Perhaps most notably, Judge Childs authored a decision in which she extensively examined and applied the ministerial exception of the First Amendment, finding that a religious university was protected from suit by an employee Judge Childs found to be a “minister.” Her decisions set forth appropriate case law, statutes, and religious-liberty tests.
Judge [Ketanji Brown] Jackson’s court history doesn’t disclose nearly as many religion-related opinions as that of Judge Childs. However, two decisions stand out. In one, Judge Jackson found a Christian worker’s complaint about religious discrimination sufficiently alleged his work conditions were changed because he played gospel music in the workplace. In another, Judge Jackson joined a council of judges that determined an appellate-court judge did not commit misconduct when she spoke of biblical justifications for the death penalty. The appellate judge had made clear her ability to set aside her religious views when acting as a judge.