President Donald Trump announced last night that Brett Kavanaugh is his nominee to be the next U.S. Supreme Court justice. The president has shown that he has little respect for the separation of church and state, so it is no surprise that he has chosen a nominee who rejects this fundamental value as well. In fact, Kavanaugh believes that the “wall of separation” metaphor, invoked by Thomas Jefferson and long used to explain the protections guaranteed to us in the First Amendment to the U.S. Constitution, “was wrong as a matter of law and history.”
The separation of church and state is the linchpin of religious freedom. We can’t afford to have a Supreme Court that would undermine it. By nominating Kavanaugh to the court, Trump threatens the vision of religious freedom for which Americans United has fought over the last 70 years. That’s why Americans United must oppose him.
Trump chose Kavanaugh, who currently sits on the U.S. Court of Appeals for the District of Columbia, from a list of conservative judges that the Chicago Tribune explained “had been outsourced to, and approved by, the conservative legal organization the Federalist Society and the Heritage Foundation, a conservative think tank.” And according to The Washington Post, conservatives were looking for a nominee “willing to shield religious objectors from progressive policies or soften the boundaries between church and state.” They want a justice who will allow religion to be used to undermine antidiscrimination laws that protect LGBTQ people and to obstruct women’s access to health care, including birth control.
According to a new report by Americans United, Kavanaugh’s record demonstrates that he would likely undermine religious freedom in a number of ways.
First, Kavanaugh would likely grant religious exemptions to businesses and nonprofit organizations even where the exemption could cause real harm to other people. In his dissenting opinion in Priests for Life v. U.S. Department of Health and Human Services, Kavanaugh argued that employers can cite religious beliefs to obstruct their employees’ access to contraception. Kavanaugh’s dissent suggests that he would permit the government to grant religious exemptions in future Supreme Court cases even if they result in the denial of health care or discrimination against women, LGBTQ people, or religious minorities. The court could distort religious freedom from a shield to protect religion into a sword to harm others.
Second, Kavanaugh is critical of five decades of Supreme Court rulings that prohibit public schools from sponsoring prayer. As an attorney, Kavanaugh wrote a friend-of-the-court brief in Santa Fe Independent School District v. Doe, defending a public school that broadcast student-delivered prayers at its football games. Kavanaugh implied that practices “deeply rooted in our history and tradition” should be permitted even if they “favor or promote religion over non-religion.” The Supreme Court disagreed with Kavanaugh. So does Americans United: Religious freedom requires that the government treat all religions equally, including belief systems that are nontheistic.
Third, in friend-of-the-court briefs in both Santa Fe and Good News Club v. Milford Central School, as well as in a 2017 speech, Kavanaugh argued against long-standing precedent prohibiting the use of public funds for religious activities. If the Supreme Court were to adopt Kavanaugh’s views on public funding of religion, that would upend the bedrock constitutional principle that we each get to decide for ourselves whether and how our money goes to support religion.
When you add all this up, Kavanaugh proves to be the wrong pick for the Supreme Court. With this nomination, the court could be in a position to play favorites and approve practices that promote the majority religion while harming schoolchildren, nonreligious people, women, LGBTQ people, taxpayers and others.
It is crucial that the Senate reject Kavanaugh’s nomination to the U.S. Supreme Court. Religious freedom for all Americans hangs in the balance.