September 2018 Chuch & State Magazine - September 2018

The Case Against Kavanaugh: Trump's New Supreme Court Nominee Could Undermine Decades Of Settled Church-State Law

  Liz Hayes

Critics of President Donald Trump’s record on church-state separation view his nomination of Judge Brett Kava­naugh to the U.S. Supreme Court as yet another threat to religious freedom.

“Judge Kavanaugh fails to understand that only the separation of church and state can guarantee religious freedom for all Americans,” Am­­ericans United President and CEO Rachel Laser said in a media statement issued minutes after Trump announced Kavanaugh’s nomination on July 9. “Instead, Judge Kavanaugh ap­pears to be intent on eviscerating this fundamental American value. That fact alone should disqualify him for a seat on the Supreme Court.”

Americans United was far from alone in calling on the Senate to reject Kavanaugh’s confirmation: AU joined more than 100 national civil rights organizations from the Leadership Conference on Civil and Human Rights (LCCHR) coalition in sending a letter to the Senate voicing opposition to Kavanaugh’s nomination. Over the course of 15 pages, the organizations enumerated Kavanaugh’s troubling record on issues including health care access, women’s reproductive rights, immigrants’ rights and discrimination claims.

“Judge Kavanaugh’s 12-year re­cord on the U.S. Court of Appeals for the D.C. Circuit, as well as his known writings, speeches, and legal career, demonstrate that if he were confirmed to the Supreme Court, he would be the fifth and decisive vote to undermine many of our core rights and legal protections,” the LCCHR coalition wrote.

“In case after case, he has ruled against individuals and the environment in favor of corporations, the wealthy, and the powerful,” the letter continued. “He has advanced extreme legal theories to overturn longstanding precedent to diminish the power of federal agencies to help people. And he has demonstrated an expansive view of presidential power that includes his belief that presidents should not be subject to civil suits or criminal investigations while in office despite what misconduct may have occurred.”

Kavanaugh was named a potential Supreme Court nominee last November when Trump released an updated list of Federalist Society-approved candidates following the appointment of Justice Neil Gorsuch. After Justice Anthony Kennedy announced on June 27 his plan to retire at the end of July, Kavanaugh quickly became a top contender.

Brett Kavanaugh and Donald Trump

(Photo: President Donald Trump’s Supreme Court nominee Brett Kavanaugh speaks during the July 9, 2018, announcement of his nomination. Credit: White House.)

Americans United staff had exhaustively researched the records of all 25 Trump judicial candidates and found Kavanaugh’s record to be particularly hostile toward church-state separation.

“Let me tell you what Brett Kavanaugh thinks of the separation of church and state,” said AU’s Laser during a “Stop Kavanaugh” protest that formed outside the Supreme Court the night of his nomination. “He says that the wall of separation [between] church and state was the wrong metaphor as a matter of law and history.”

Laser was referring to Kavan­augh’s speech last year at the conservative think tank American Enterprise Institute (AEI), during which he praised former Chief Justice William Rehnquist for “persuasively critici­z[ing]” the use of the metaphor of “a strict wall of separation between church and state” to explain the meaning of the First Amendment.

Kavanaugh touted Rehnquist’s claim that the phrase was “based on bad history” and was “useless as a guide to judging” – despite its use by both Thomas Jefferson, a founding father of America’s concept of religious freedom, and by the Supreme Court.

The wall [of separation between church and state] metaphor was wrong as a matter of law and history.

~Brett Kavanaugh, quoting and praising former Chief Justice William H. Rehnquist

Kavanaugh could shift the balance of the court, especially on matters such as abortion rights and health care access. His dissent in the church-state case Priests for Life v. U.S. Department of Health and Human Services lends credence to the fears that he would vote to allow religious beliefs to be used to harm others.

In Priests for Life, a nonprofit organization challenged the accommodation created by the Obama administration for religiously affiliated non­­profits.

The accommodation allows nonprofits to simply fill out a form to opt out of the Affordable Care Act (ACA) benefit that requires most health insurance plans to cover contraceptives. The government then works directly with the insurance company to ensure the nonprofits’ employees still have no-cost coverage; the nonprofits aren’t involved in paying for or providing insurance coverage for birth control.

However, some nonprofits like Priests for Life, an anti-abortion advocacy group, claimed that merely filling out the form to obtain the accommodation violated their religious beliefs, so they sued the government. The U.S. Circuit Court of Appeals for the District of Columbia heard the case (in which Americans United filed a friend-of-the-court brief) and ruled that the government’s accommodation struck a fair balance of protecting both women’s access to health care and the religious beliefs of employers.

Kavanaugh, a judge on the D.C. Circuit, dissented and indicated he would have permitted the nonprofit to use religious beliefs to obstruct women’s access to birth control. Showing how far out of the mainstream he is, his dissent was at odds with the opinions of eight of the nine federal appeals courts that upheld the accommodation.

Kavanaugh’s dissent indicates he might grant religious exemptions to businesses and nonprofits even when the exemption could cause real harm to other people. On the heels of the Supreme Court’s narrowly tailored June ruling in Masterpiece Cakeshop v. Colorado Civil Rights Commission, it’s likely that at least one of the similar cases around the country involving businesses that want to cite religious beliefs as a reason to turn away LGBTQ customers will make it back to the high court.

Likewise, the court is expected to hear cases involving employers who want to use religion as a justification for firing or refusing to hire employees who don’t live according to the boss’s faith. For instance, a Michigan funeral home that cited religious beliefs for firing a transgender employee petitioned the Supreme Court in July to hear its case, Harris Funeral Homes v. EEOC. And legal challenges have been filed against the Trump administration’s proposed rules that would allow employers and universities to cite religious beliefs as a reason for denying women insurance coverage for birth control. These lawsuits – including one filed by Americans Uni­ted and allies – could very well end up before the Supreme Court.

Kavanaugh’s record also suggests he would be open to overturning five decades of Supreme Court precedent regarding school-sponsored prayers in public schools. As an attorney in 1999, Kavanaugh wrote a friend-of-the-court brief in Santa Fe Independent School District v. Doe, a case involving a public school in Texas that broadcast student-delivered prayers at its football games. Kavanaugh represented two U.S. congressmen, both former professional football players, who supported the prayers.

Not only did Kavanaugh argue that the school-sponsored prayers were constitutional, but he contended that the Constitution requires public schools in some circumstances to allow students to deliver prayers to a captive audience of other students at public school events – a practice that AU argues is clearly coercive, exclusionary and indicative of government support for a particular faith. Kavanaugh implied that practices “deeply rooted in our history and tradition” should be permitted even if they “favor or promote religion over non-religion.”

The Santa Fe case went to the U.S. Supreme Court and the district’s prayer practice was deemed unconstitutional – in a 6-3 opinion with Ken­nedy in the majority. If Kavanaugh replaces Kennedy, he could shift the balance of the court on this issue, leaving students from minority faiths and nonreligious students feeling excluded and relegated to outsider status in their own schools.

“Judge Kavanaugh fails to understand that only the separation of church and state can guarantee religious freedom for all Americans. Instead, Judge Kavanaugh ap­pears to be intent on eviscerating this fundamental American value. That fact alone should disqualify him for a seat on the Supreme Court.

~ AU President and CEO Rachel Laser

Kavanaugh also has shown support for allowing taxpayer money to fund religious activities in instances where the public funding is available to both religious and nonreligious applicants. This viewpoint was expressed in both the Santa Fe brief and in another amicus brief he authored in the case Good News Club v. Milford Central School, which involved an adult-run student Bible club meeting at an elementary school immediately after the end of the school day.

Kavanaugh echoed this sentiment again in his 2017 AEI speech. His views are concerning because the Supreme Court last year cracked open the door to requiring taxpayers to fund religious activities. In the Trinity Lutheran Church of Columbia v. Comer decision, the high court determined a Missouri church was eligible to apply for a publicly funded grant program to resurface its preschool’s playground. The high court narrowly tailored its decision to only that specific case and noted the money was being used for a nonreligious purpose, but some justices indicated they would have ruled more broadly – and Kavanaugh’s views seem to indicate he would as well.

Those who would undermine church-state separation have cited the Trinity Lutheran decision to argue that government should be able to fund rebuilding houses of worship; that “no-aid” provisions in state constitutions that block government from funding religious entities – including private-school voucher programs – should be nullified; and that government should be required to fund religiously based child-welfare programs that discriminate against LGBTQ families, religious minorities and others. If any of those issues end up in the Supreme Court, Kavanaugh could help to kick the door open even wider to taxpayer funding for religious purposes.

There remains a large gap in the knowledge about Kavanaugh’s background: Records have not yet been made public from the five-year period he worked in the George W. Bush administration before Bush appointed him to the federal appeals court in 2006. Kavanaugh could have played a role in developing church-state policies such as Bush’s Faith-Based Initiative, which exempted faith-based, publicly funded contractors from complying with longstanding employment antidiscrimination laws.

George Bush appointee Brett Kavanaugh's swearing-in ceremony

(Photo: Brett Kavanaugh, a longtime political operative in the George W. Bush White House, takes the oath of office after Bush appointed him to become a judge on the U.S. Circuit Court of Appeals for the District of Columbia. Credit: White House.)

There is clear precedent that these Bush-era records should be released and reviewed by the public and by the Senate. When President Barack Obama nominated Elena Kagan to the Supreme Court, more than 170,000 pages of documents from Kagan’s years working in the Bill Clinton White House were released while less than one percent of the requested records were withheld. Obama didn’t assert executive privilege to block any of the documents, and the few records that Clinton objected to being publicly released were allowed to be shared with the Senate Judiciary Committee confidentially.

Fix the Court, a nonpartisan watch­dog group, learned through Freedom of Information Act requests last year that the George W. Bush Presidential Library and Museum has about one million potential records related to Kavanaugh.

That’s why Americans United joined more than 100 organizations in writing to the leaders of the Senate Judiciary Committee to ask for a full release of emails and other materials generated by Kavanaugh during his time in the White House, and to delay his confirmation hearings until these records have been reviewed. The coalition noted that both Sen. Chuck Grassley (R-Iowa), now chairman of the committee, and then Sen. Jeff Sessions (R-Ala.), now Trump’s attorney general, made similar demands before they would confirm Kagan. “The public record of a nominee to such a lifetime position as Justice on the Supreme Court is of such importance that we cannot go forward without these documents,” Sessions said in May 2010.

At Church & State’s press time, the vast majority of the Kavanaugh records had not yet been released. Grassley had requested records from the time Kavanaugh served in the White House Counsel’s office, but not from Kavanaugh’s nearly three years as Bush’s staff secretary. Dem­ocrats, led by Sen. Dianne Feinstein (D-Calif.), the ranking Democrat on the committee, argued that all of Kavanaugh’s White House records should be disclosed.

“What is so disqualifying in his record from the White House that they would accede to the administration’s wishes and ignore the precedent Republicans set in demanding exhaustive document productions by Obama nominees?” questioned Sen. Sheldon Whitehouse (D-R.I.), also a member of the Judiciary Committee.

Even the reduced number of documents requested by Grassley may not be available in time for the Senate Judiciary Committee to begin confirmation hearings Sept. 4 as planned. The National Archives on Aug. 2 said it would likely take until late October to produce everything Grassley had requested.

Grassley indicated many of the records would be available more quickly through the Bush Presidential Library, but Democrats are concerned about the neutrality of the process because a partisan attorney hired by the library, William Burck, is handling the document review. Burck currently represents three people tied to Trump in Robert Mueller’s special counsel probe – former Trump adviser Steve Bannon, current Trump White House counsel Don McGahn and former chief of staff Reince Priebus.

Republicans have expressed a desire to confirm Kavanaugh before the Supreme Court begins its fall 2018 term on the first Monday of October. But they have no margin for error. Republicans have a 50-49 majority in the Senate assuming Sen. John McCain (R-Ariz.), who is battling brain cancer, is too ill to participate in a vote. Both sides are trying to sway moderate conservative Sens. Lisa Murkowski (R-Alaska) and Susan Collins (R-Maine), who are pro-choice and who split from their party to vote against repeal of the ACA last summer. Also under scrutiny are red-state Democratic Sens. Joe Manchin III (D-W.Va.), Heidi Heitkamp (D-N.D.) and Joe Donnelly (D-Ind.), all of whom voted to confirm Gorsuch to the high court.

Americans United and many progressive groups have been urging supporters to contact their senators and voice opposition to Kavanaugh.

“Our core American principle of church-state separation hangs in the balance,” said AU’s Laser. “We call on the Senate to reject the nomination of Judge Kavanaugh.”

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