September 2018 Chuch & State Magazine | Editorial

Brett Kavanaugh does not deserve a seat on the U.S. Supreme Court.

Kavanaugh, a federal appeals court judge, was tapped by President Donald Trump to replace Justice Anthony M. Kennedy, who announced his retirement in June. The Senate should say no to this nominee.

Kavanaugh doesn’t respect America’s tradition of church-state separation, as he made clear during a 2017 speech delivered to the American Enterprise Institute. During that talk, Kavanaugh expressed great admiration for the views of the late Chief Justice William H. Rehnquist. Rehnquist, an extreme conservative, attacked the metaphor of a “wall of separation” between church and state in his dissent to a 1984 school prayer case. He asserted that the wall metaphor was based on “bad history” and called it “useless.”

The metaphor is most closely associated with Thomas Jefferson, who used it in an 1802 letter to the Danbury, Conn., Baptist Association. At the time, the Baptists were living under a state of religious oppression. Connecticut had an officially established church (Congregationalism), which suppressed the rights of other religious groups. The Baptists knew Jefferson was a champion of religious freedom and wrote to express their hope that his view on that issue would someday encompass the nation, freeing them from ecclesiastical bondage.

But Jefferson wasn’t the only one to use a phrase like that. Colonial-era religious freedom pioneer Roger Williams spoke of the need for a “hedge or wall of Separation between the Garden of the Church and the Wilderness of the world,” and James Madison endorsed a “line of separation” between church and state.

To Rehnquist, none of this history mattered. In fact, he greatly distorted it in his quest to discredit the idea of church-state separation. No jurist who believes that Rehnquist was right while Williams, Jefferson and Madison got it wrong belongs on our nation’s highest court.

While serving as an attorney in private practice, Kavanaugh wrote a legal brief attacking the Supreme Court’s decisions striking down school-sponsored prayer and religious worship in public schools. These practices are clearly coercive because they pressure young people to take part in religion against their will. Kavanaugh defended them on the grounds of tradition. That’s cold comfort to the kids who would have religion pressed on them, often in contravention to their parents’ wishes.

Kavanaugh has also expressed support for taxpayer aid to religious schools and other sectarian institutions, asserting that in some cases, this assistance might be required. He’s also shown sympathy to employers who cite their personal religious beliefs in denying employees access to birth control.

The United States is changing. When it comes to religion, our nation is more diverse than ever, and growing numbers of people say they have no religion at all. Only separation of church and state ensures that we will all be able to live together in peace.

Church-state separation keeps our public schools secular and focused on teaching, not preaching. It mandates that sectarian projects, such as private religious schools, be funded by the people who believe in them, not the taxpayers at large. The principle prevents religious groups from monopolizing government spaces with signs and symbols that some, but not all, accept.

Separation of church and state also means that no one can be forced to live under someone else’s theology. It means that no American can be harmed or experience a loss of rights because of another’s faith.

We’ve seen too much erosion of this principle as it is. We can’t afford to see even more assaults launched by judges like Kavanaugh. Indeed, our focus should be on rebuilding the wall and replacing bricks that have been removed.

Our nation will need separation of church and state more than ever in the years to come. There’s never a good time to undermine that principle, but this is certainly one of the worst. As 325 million people struggle to live side by side – people who practice a variety of religions and some who practice none – only the separation principle can protect the rights of all.

The alternative is a form of religious supremacism, a society where some people have more rights than others, by dint of their faith. That’s unacceptable. That’s a recipe for conflict, tension and division. Yet that is where we may be headed.

We must do all in our power to see that this vision of America does not come to pass. Contact your senators and urge them to vote against Brett Kavanaugh.