If you care about the rights of religious minorities and immigrants, then you should be concerned about President Donald Trump’s nomination of Brett Kavanaugh to the U.S. Supreme Court. Kavanaugh’s record indicates that he’s hostile toward church-state separation, and that hostility could have a huge impact on religious minorities, particularly immigrants.
Before he worked in the George W. Bush White House and before Bush appointed him to the U.S. Circuit Court of Appeals for the District of Columbia, Kavanaugh was a private attorney who filed some friend-of-the-court briefs that made troubling arguments about church-state separation and religious freedom.
In one case, Santa Fe Independent School District v. Doe, Kavanaugh wrote in support of a Texas public school district that broadcast student-delivered prayers at its football games. The Supreme Court – with Justice Anthony Kennedy in the majority – deemed the prayer practice unconstitutional.
In that brief, Kavanaugh implied that practices “deeply rooted in our history and tradition” should be permitted even if they “favor or promote religion over non-religion.” In other words, he indicated that he may elevate the interests of people who practice mainstream faiths – particularly Christianity – at the expense of people who are religious minorities or who are nonreligious.
Writing in The Washington Post, University of Texas law professor Stephen I. Vladeck noted that Kavanaugh has shown more deference to presidential powers in some contexts than Kennedy, meaning that Kavanaugh could shift the balance of power on the court.
As a federal judge, Kavanaugh has shown reluctance to extend constitutional rights to immigrants and has been “excessively deferential” to the president’s power in national security contexts. These views have been on display in cases arising from the detention or prosecution of noncitizens detained as “enemy combatants” at Guantanamo Bay and in last year’s Garza v. Hargan case involving “Jane Doe,” an undocumented immigrant teenager whom the government tried to block from getting an abortion while she was in federal custody.
These views are particularly worrisome coming from a man who could sit on the high court while the White House is occupied by a president who has tried to use unsubstantiated claims of national security to screen his anti-Muslim bias. Citing presidential authority in national security matters, the Supreme Court in June ignored Trump’s anti-Muslim rhetoric and allowed his Muslim ban to remain in place for now. But litigation surrounding the ban continues – including three distinct legal challenges Americans United is involved in regarding the ban, the documentation that Trump officials claim justifies it and the process to acquire waivers from it.
Any of these challenges could end up back at the Supreme Court, or (I shudder to say it) Trump could launch new assaults on the religious freedom of Muslims or other religious minorities. Kavanaugh on the Supreme Court would make an uphill climb for justice that much steeper.
People are already being harmed by Trump’s cruel immigration policies – how much more damage could his administration do with Kavanaugh on the court to rubber stamp his dictates?
This is just one of the many areas in which Kavanaugh has demonstrated he is wrong on church-state separation and wrong for the U.S. Supreme Court. We’ve outlined several other areas of concern – including LGBTQ rights, reproductive justice and public education.
The Senate Judiciary Committee is pushing ahead with Kavanaugh’s confirmation hearings starting on Sept. 4, despite the lack of requested documents about Kavanaugh’s record in the Bush White House. Now is the time to act! Help us stop Kavanaugh by urging your senators to reject his confirmation. Religious freedom and church-state separation are on the line.