Senate confirmation hearings for President Donald Trump’s Supreme Court nominee Brett Kavanaugh start today – even though thousands of requested documents from Kavanaugh’s time working in the George W. Bush White House have not yet been released or reviewed by the Senate or the public.
From the limited documents that have been released and Kavanaugh’s known record as a judge and attorney, we do know he has taken stances that are hostile toward church-state separation – from his praise for former Chief Justice William Rehnquist’s view that the wall of separation metaphor “was wrong as a matter of law and history” to Kavanaugh’s work that indicates he may allow religion to be used as justification to discriminate against women, LGBTQ people, religious minorities and others.
As senators question Kavanaugh about his views on everything from reproductive justice to presidential power, it’s vital that they ask him about his views on church-state separation – which is not only the linchpin of religious freedom, but also informs his views on many other crucial issues including reproductive rights, health care access, LGBTQ equality, and the rights of immigrants and religious minorities.
Here are several key questions we urge senators to ask Kavanaugh in the coming days:
Wall Of Separation: If he doesn’t think the First Amendment’s Establishment Clause, which bars the government from establishing or favoring any religion or religion over nonreligion, creates a wall of separation between church and state, what does he think the clause means and how would he interpret it?
Faith-Based Initiative: Records indicate he volunteered to be “walking point” on Bush’s Faith-Based Initiative. Can Kavanaugh explain his involvement in the initiative and other policies that would allow taxpayer-funded social service agencies to use religious beliefs as justification to discriminate when hiring. What was his legal justification for regulations to allow social service agencies to discriminate in hiring on the basis of religion with taxpayer dollars?
Religious Exemptions: As a judge, Kavanaugh has indicated he would side with employers who would cite religious beliefs to obstruct women’s access to birth control. Does he believe that the Constitution prohibits the government from granting religious exemptions when they cause harm to others? Does he believe this principle prohibits the government from granting religious exemptions to nondiscrimination laws or to organizations that want to deny people a benefit to which they are otherwise entitled, such as health insurance coverage?
Aid To Religious Organizations And Schools: In legal briefs, Kavanaugh has shown support for allowing private money to be used for religious purposes. Under the Constitution, does he think religious organizations and schools are eligible for public funding even if taxpayer dollars will be used for religious activities? Do religious schools and organizations that take taxpayer dollars also have to follow the same neutral rules that nonreligious organizations must follow – such as not discriminating on the basis of religion, race, sex, sexual orientation or gender identity?
Private School Vouchers: Kavanaugh has indicated he supports private school vouchers, even though they are bad for both public education and religious freedom. Can “no-aid clauses” in state constitutions, which prohibit public funds from being used for religious purposes, prohibit private school vouchers from being used at religious schools?
School-Sponsored Prayers: Kavanaugh has filed a legal brief in support of school-sponsored prayers in a public school. Does he believe that students can be forced to listen to (or even take part in) prayers while they are in a public school classroom or at school-sponsored events? Does he agree with the Supreme Court precedent that courts must be particularly vigilant to protect public school students because they are young, impressionable and a captive audience?
Americans United staff will be watching and responding in real time on Twitter to any church-state issues that come up – follow along on our Twitter page to stay informed, and you can watch a live stream of the hearing online here.
And it’s more important now than ever to make sure your senators have heard that you oppose Kavanaugh’s confirmation to the Supreme Court. Church-state separation is on the line.
(Photo: Brett Kavanaugh during his confirmation hearing before the Senate Judiciary Committee on Sept. 4, 2018. Credit: Screenshot from C-SPAN.)