In 2010 the US Court of Appeals for the DC circuit dismissed a lawsuit by Michael Newdow (the infamous atheist who has filed repeated lawsuits over So help me God/In God we Trust/etc.) seeking to prohibit “so help me God” and prayer from President Obama’s inauguration. Supreme Court Chief Justice John Roberts, as the administrator of the Presidential oath, was named as defendant.

The 3-judge panel of the Appeals Court dismissed the case, saying Newdow did not have standing. One of the judges disagreed, saying Newdow did have standing, but he said the case failed on its merits.

That was Judge Brett Kavanaugh.

As noted at the time, Judge Kavanaugh’s explanation appears to set the judicial branch of the US government up as an official arbiter of the acceptable content of religious prayers — an untenable, and debatable, position.

However, what was not noted at the time was Judge Kavanaugh’s potential admission of reluctance in using that argument at all [emphasis added]:

As to the permissible content of the legislative prayers, the Marsh Court articulated a somewhat ambiguous standard: “The content of the prayer is not of concern to judges where, as here, there is no indication that the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief. That being so, it is not for us to embark on a sensitive evaluation or to parse the content of a particular prayer.”…

The Supreme Court’s holding in Marsh – allowing government-sponsored religious speech or prayer at a public event where prayers have traditionally occurred, at least so long as the prayers are not proselytizing (seeking to convert) or otherwise exploitative – does not satisfy all Americans. No holding on this issue would in our pluralistic society. But the precedent has endured, and as a lower court we must follow and apply it in this case.

In other words, one could interpret Judge Kavanaugh to be saying that the methodology might be objectionable, but, being the lower court, they were required to follow it. Thus followed Judge Kavanaugh’s analysis of the content of prayers — as objectionable at that concept is.

The greater issue, as discussed during the original case, was the potential that such a content-based test could be repeatedly called upon as a bludgeon, with the end result being hostility toward religious expression and a restriction of religious liberty, as it pertains to state actors.  And one of the greatest groups of sometimes-called “state actors” (depending on your point of view) is the US military.

In the end, Newdow appealed the dismissal to the Supreme Court; naturally, the government asked the Court to deny the appeal. In their reasoning, they noted that even if Newdow prevailed on standing, Judge Kavanaugh had already explained he would fail on the merits.

In that way, Judge Kavanaugh’s concurring opinion was used to support the ultimate denial of the appeal of the case against Chief Justice John Roberts — Judge Kavanaugh’s future boss.

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