Yesterday, Supreme Court nominee Brett Kavanaugh participated in about 13 hours of questioning from members of the Senate Judiciary Committee and twice spoke to issues of religious freedom. His comments confirmed what we already suspected and explained in our report: Kavanaugh is a serious threat to the separation of church and state, and therefore to the religious freedom of all Americans.
Religion first came up during a question from Sen. John Cornyn (R-Texas). Cornyn began by lamenting the 2000 Supreme Court decision in Santa Fe Independent School District v. Doe, in which public school-sponsored prayers broadcast over a loudspeaker during football games were ruled unconstitutional. Both Cornyn and Kavanaugh participated in that case to defend the school-sponsored prayers – Cornyn as the attorney general of Texas and Kavanaugh as the author of a friend-of-the-court brief submitted to the court.
Cornyn complained that losing the case still “sticks in my craw,” and Kavanaugh agreed that it does for him, too. But then Kavanaugh suggested that “there have been some developments” since then that undermine the decision. Of course, the cases he cited for support – Good News Club v. Milford Central School (allowing religious clubs to meet after school), Greece v. Galloway (allowing sectarian prayer at a town council) and Trinity Lutheran Church of Columbia v. Comer (allowing taxpayer-funded grants to religious organizations for playground materials) – say nothing about school-sponsored prayer. But Kavanaugh’s clear disdain for Santa Fe and his willingness to use these cases to discredit the ruling confirms that he will likely reject five decades of Supreme Court jurisprudence that bars public schools from sponsoring prayer and religious activities.
These school prayer rulings are fundamental to religious freedom. They protect students, particularly those of minority faiths and the nonreligious, who could otherwise be made to feel like outsiders in their own schools because of their religion. They also protect parents who want to send their children to public schools without fear that they will be coerced into participating in prayer or religious activities.
Sen. Ted Cruz (R-Texas) also tossed Kavanaugh some softball questions on religious liberty. Kavanaugh’s response began with some basic but important religious liberty concepts: “you’re equally American no matter what religion you are, [or] if you’re no religion at all,” “unpopular religions are protected” and the government can’t coerce you into practicing religion. But the nuances in his answer as he continued were telling.
When Kavanaugh took on the task of explaining the meaning of the Establishment Clause, the phrase “separation of church and state” was notably absent. Instead, he highlighted two cases – Greece and March v. Chambers – which are both cases that permitted government bodies to begin meetings with prayers. He used these cases to make the point that “some religious traditions in governmental practices are rooted sufficiently in history and tradition to be upheld.” In a friend-of-the-court brief he submitted to the Supreme Court, he made a similar argument, suggesting that the court should adopt this test to permit school-sponsored prayer at graduations and the beginning of the school day.
If he were to use this test on the court, our religious freedom would be greatly diminished. First, it would permit the government to promote religion virtually anywhere. Second, the religions that are rooted in history and tradition will always be the majority faith, which would perpetuate the privileges of one religion, Christianity.
In addition, Kavanaugh said that “religions … have just as much right to … participate in the public programs as others do. You can’t be denied just because of your religious status.” This statement might not sound alarm bells because everyone, regardless of religion, should be treated equally. But what Kavanaugh is alluding to is his opinion that the government should be forced to give religious organizations taxpayer dollars to fund religious activities and education. This is something for which he has fought for decades.
Kavanaugh was the point person for George W Bush's Faith-based Initiative, which tore down the traditional safeguards that exist when the government partners with religious organizations, including allowing them to discriminate in hiring with taxpayer dollars. He was also the co-chair of the School Choice Subcommittee of the Religious Liberty Practice Group of the Federalist Society, which advocates for private school vouchers that primarily fund religious schools.
While the hearings continue today and there are still several questions we’d like Kavanaugh to answer about religious freedom, it’s clear from his responses so far and his record that he’s hostile to church-state separation. That’s why Americans United is urging senators to oppose his nomination – and you should too. Church-state separation is on the line.
(Photo: Sen. Ted Cruz, left, questions Supreme Court nominee Brett Kavanaugh. Credit: Screenshot from C-SPAN.)