Brett Kavanaugh’s Record on Church-State Separation is Really, Really Bad!

by Rob Boston

Americans United is organizing a Day of Action today to block the confirmation of Brett Kavanaugh to the U.S. Supreme Court.

Over the past few weeks, we’ve posted a series of blog items about Kavanaugh and how he might affect issues from public education to LGBTQ rights.

Today, we’re introducing a new video that explains what a dangerous place Brett Kavanaugh’s America could be if he and the Trump administration are able to undermine church-state separation and religious freedom for all:

Here are just a few of the reasons outlined in the video why Kavanaugh is wrong on church-state separation and wrong for the Supreme Court:

Kavanaugh has attacked the very concept of church-state separation: Just last year, Kavanaugh gave a speech to a right-wing group during which he assailed the metaphor of the “wall of separation” between church and state. Coined by colonial-era religious liberty pioneer Roger Williams and endorsed by Thomas Jefferson, the wall has been a vital bulwark of religious freedom in America. Yet in his lecture given to the American Enterprise Institute, Kavanaugh praised former Chief Justice William H. Rehnquist who attacked the metaphor of a wall of separation between church and state. Kavanaugh approvingly noted that Rehnquist said the metaphor was “based on bad history” and “useless as a guide to judging.” Kavanaugh told the crowd he believes that “the wall metaphor was wrong as a matter of law and history.”

Kavanaugh sees no problem with official forms of coercive prayer in public schools: While an attorney in private practice, Kavanaugh authored a Supreme Court brief in Santa Fe Independent School District v. Doedefending a public-school policy that promoted prayer at school football games. In the brief, Kavanaugh argued that school-sponsored prayer is “traditional.” He seems willing – and even eager – to toss five decades of settled law right out the window.  

Kavanaugh is an advocate of tax aid to religious groups: In a brief submitted to the Supreme Court in Good News Club v. Milford Central School, Kavanaugh argued against longstanding precedent prohibiting the use of public funds for religious activities. He has made it clear in speeches and legal writings that he believes school vouchers are constitutional. As an attorney in private practice, Kavanaugh was a member of the legal team that defended then-Gov. Jeb Bush’s private school voucher program that Americans United and allies challenged in court. Kavanaugh argued that the state could fund its private school voucher program despite a provision in the Florida Constitution that protects against such aid.

Kavanaugh supports a warped view of “religious freedom”: Kavanaugh’s record indicates that he would likely allow religious freedom laws to be used to harm women, LGBTQ people and religious minorities. In Priests for Life v. U.S. Department of Health and Human Services, Kavanaugh argued that employers can cite religious beliefs to deny their employees’ access to contraceptive coverage. He was out of step with most federal appeals courts here, which ruled in the opposite manner. Kavanaugh’s views, if extrapolated, could allow businesses, health care professionals and others to deny goods and services to LGBTQ people.

To learn more about Kavanaugh and his extreme views, please read this special Americans United report. Americans United interns and staff members also made short, personal videos about how Kavanaugh might affect specific church-state issues. You can see them on AU’s Instagram page or Facebook page.

Now is the time to act! Help AU spread the word – and please let your senators know that you oppose Kavanaugh’s nomination.