My first day of work at Americans United was Nov. 16, 1987. Once I got settled in, I was curious about what my first assignment would be. Joe Conn, then the editor of AU’s Church & State magazine, didn’t make me wait long. He tossed a thick manila folder of newspaper clippings on my desk and said, “President Reagan has nominated this guy Anthony Kennedy for the Supreme Court. See what you can find out.”
What I learned was that when it came to separation of church and state, little was known then about Kennedy, who yesterday announced his retirement from the court. In my story, I noted, “On church-state relations … the Kennedy file is slim and surrounded by unanswered questions.”
The Senate Judiciary Committee hearings didn’t reveal much. We knew we’d have to wait until Kennedy got on the high court to learn more about his approach to church-state relations.
The early signs were troubling. In a 1989 decision that curbed the display of religious symbols at the seat of government, Kennedy dissented and wrote that “substantial revision” of the court’s separation of church and state rulings might be in order.
At Americans United, we feared the worst. In 1992, a case reached the high court from Rhode Island challenging school-sponsored prayers during a public school graduation ceremony. Religious Right groups called on the court to use the case, Lee v. Weisman, as a vehicle to overturn the famous 1962 and ’63 school prayer rulings. Would the court really go that far? It seemed possible.
We were all thrown for a curve the day the decision came down. In ringing language, it upheld the 1960s rulings that public school children couldn’t be forced to pray or listen to readings from the Bible – and the justice who wrote it was Kennedy!
“The First Amendment’s Religion Clauses mean that religious beliefs and religious expressions are too precious to be either proscribed or prescribed by the State,” Kennedy wrote.
In later years, Kennedy emerged as a champion of LGBTQ rights, penning decisions that upheld marriage equality and struck down policies that discriminated against gay people.
But Kennedy was in no way a consistent ally of church-state separation. Some of his opinions could be exasperating. He saw no problem with taxpayer aid being funneled to religious schools through voucher plans and other forms of government assistance to religion. He embraced a theory of religious freedom that allowed for-profit companies such as Hobby Lobby to deny birth control to their employees. He never could understand why the government’s display of religious symbols was a problem, and he approved of government-sponsored legislative prayer. Just a few days ago, he joined a majority opinion upholding President Donald Trump’s cruel Muslim ban.
Still, Kennedy’s announcement that he is retiring is cause for sadness and alarm – mainly because Trump gets to replace him. While Kennedy was often wrong on separation of church and state, he was right just enough to make him an important swing vote on some occasions. The chances are good that Trump, who loves to kowtow to his fans in the Religious Right, will pick a replacement who’s never right.
For that reason, religious freedom in our nation today is in a more precarious place than it was just two days ago.
(Photo: Anthony Kennedy meets with President Ronald W. Reagan at the White House, Nov. 11, 1987. White House photo.)