During his Senate Judiciary Committee confirmation hearing, Brett Kavanaugh commiserated with U.S. Sen. John Cornyn (R-Texas) over a 2000 school prayer case that didn’t go the way they would have liked. Kavanagh remarked that a legal loss like that “sticks in my craw.”
You know what sticks in my craw? People like Kavanaugh who think they know more about the First Amendment than the men who conceived and drafted it.
Today is Constitution Day, so it’s a good time to remember what the separation of church and state has done for religious freedom in this country. The story is nothing short of remarkable. In the shadow of what colonial-era religious freedom pioneer Roger Williams referred to as the “hedge or wall of Separation between the Garden of the Church and the Wilderness of the world” and Thomas Jefferson called the “wall of separation between church and state,” religious freedom in America has flourished.
Want proof? All you need to do is take a minute to think about all of the religions that operate freely in this country.
Religious Right groups often assert that church-state separation somehow suppresses religion or reduces its influence. American history and contemporary experience prove them wrong. Freed from any official connection to the government, religious groups in America learned to tap voluntary sources (that is, their own members) for support – and they flourished.
Interesting things began to happen. If people were not happy with the house of worship they were attending, they left and found another one. In the fertile soil of American religious freedom, entirely new movements sprung up and grew – the Church of Jesus Christ of Latter-day Saints, the Seventh-Day Adventist Church and the Christian Science Church come to mind.
Non-Christian faiths took firm root as well. Jews had been part of the American experience from the early days, and some of the enslaved people who were brought here in chains were Muslims or animists. In the late 19th century, spiritualist beliefs grew and were organized as churches, and in the modern era, ancient faiths like Wicca and Paganism resurfaced.
The right to reject religion entirely is also protected by the First Amendment, and thinkers like Robert G. Ingersoll (known as the “Great Agnostic”), Matilda Joslyn Gage, D.M. Bennett and others challenged the claims of religion, a trend that continues today with the growth of national atheist/humanist and freethought organizations.
Far from suppressing faith, separation of church and state, by decoupling the two institutions, gave all Americans the right to decide for themselves what, if anything, they would believe about God (or Gods), how they would worship, where they would worship and when they would worship. The result is a range of vibrant, diverse faith and non-faith communities that provide something for every taste.
Despite its success, Kavanaugh has a problem with that wall. He’s greatly enamored of the views of the late Supreme Court Chief Justice William H. Rehnquist who in a dissent to a 1985 school prayer case called the wall of separation between church and state “a metaphor based on bad history, a metaphor which has proved useless as a guide to judging.” Rehnquist called for it to be “frankly and explicitly abandoned.”
Twenty years after Rehnquist penned those words, another Supreme Court justice, Sandra Day O’Connor, made a much more compelling observation in a case dealing with displays of the Ten Commandments by county governments in Kentucky.
“Those who would renegotiate the boundaries between church and state,” O’Connor wrote, “must therefore answer a difficult question: why would we trade a system that has served us so well for one that has served others so poorly?”
It’s a powerful question. On this Constitution Day, it’s one that all opponents of the church-state wall, including Kavanaugh, should be challenged to answer.
P.S. It’s not too late to let your senators know that you oppose Kavanaugh’s nomination to the Supreme Court.