As soon as Brett Kavanaugh was nominated for the Supreme Court, people on both sides of the political aisle began taking a fine tooth comb through his life, credit card bills, and court opinions. Some unearthed evidence that he accumulated tens of thousands of dollars of credit card debt buying baseball tickets—evidence which immediately made Detroit Tiger fan Dan Dalton jealous. Others looked for signs as to whether he’d overturn Roe v. Wade. But beyond the interest in baseball and babies, a few have focused on Kavanaugh’s pro bono work defending religious liberty in general and in the land use context in particular. Allison Kaplan Sommer of Haaretz recently wrote an article describing how Kavanaugh, who is Catholic, worked on a pro bono legal team which defended a Jewish congregation’s effort to establish a shul in Bethesda, Maryland.
For religious land use nerds litigators like us at Dalton & Tomich, a Supreme Court Justice’s history of defending religious liberty in the land use context is certainly noteworthy. Because of our work defending religious groups all across the country under the Religious Land Use & Institutionalized Persons Act (RLUIPA), we have seen how local land use regulations can be the greatest threat to religious liberty in America. How can religious freedom exist when religious groups cannot find a place to meet and engage in their religious activities?
Though judges and justices are tasked with applying the laws as written, their familiarity with an area of the law or with the plight of certain kinds of plaintiffs gives them a better appreciation for what is at stake in a case. After Neil Gorsuch was nominated to the Supreme Court, I was encouraged by the fact that he personally listed a RLUIPA case, Yellowbear v. Lampert, 741 F.3d 48 (10th Cir. 2014), as one of the ten most significant cases over which he presided. Justice Sotomayor quoted favorably to Judge Gorsuch’s Yellowbear decision in a similar religious liberty case the Supreme Court decided in 2015.
While the Supreme Court decided a RLUIPA case involving an institutionalized person in 2015, Holt v. Hobbs, it has yet to take a land use case. But given the split in the lower courts over how RLUIPA should be applied in the land use context, and because of the growing number conflicts between religious groups and municipalities, it may not be too long before the Supreme Court decides to weigh in. When that case arises, the religious land use plaintiff will find in Brett Kavanaugh an individual who chaired the Federalist Society’s Religious Liberty practice group, wrote amicus briefs to the United States Supreme Court in defense of religious freedom, and successfully defended a synagogue in a local land use case. His record reveals an individual familiar with the real problems religious groups face at the local level and the need to protect the civil rights of all religious groups.