On July 9, President Donald Trump announced the nomination of Judge Brett Kavanaugh to the United States Supreme Court to fill the vacancy left by the retirement of Associate Justice Anthony Kennedy.
Judge Kavanaugh filling this seat on the Supreme Court would threaten the Constitution’s promise of religious equality under the law and the very foundation of the wall of separation between religion and government.
On The Issues
Since 2006, Judge Kavanaugh has served on the U.S. Court of Appeals for the D.C. Circuit. During that time, Kavanaugh has wasted no opportunity to undermine religious neutrality, promote a twisted vision of religious freedom in which religious belief is a license discriminate, and even attack the very idea of the separation of religion and government.
Government-Sponsored Prayer and Religious Displays
In a 2010 decision in Newdow v. Roberts finding that a group of atheists who sued to prevent sectarian prayers from being delivered at presidential inaugurations lacked standing, Judge Kavanaugh went even further and wrote a concurring wrote a concurring opinion arguing that the prayers were constitutional and opining that prayers would be permissible in even more settings and that they could be explicitly sectarian.
Kavanaugh even went so far as to claim that requiring government ceremonies to be religiously neutral would reflect “hostility” toward religion and “establish” atheism.
In a brief he filed in Santa Fe ISD v. Doe, Kavanaugh approvingly cited a dissent filed in the 1989 case County of Allegheny v. ACLU, in which the Supreme Court held that placing religious symbols on public property is unconstitutional if it results in promotion of religion. Kavanaugh argued in favor of practices “deeply rooted in our history and tradition” even if those practices “favor or promote religion over non-religion.”
Why It Matters
Christian supremacists are using seeking to inject more and more religious content into government activities. In the wake of the 2014 decision in Greece v. Galloway, elected officials seeking to elevate their own beliefs above all others continue to test the limits of the Court’s decision and purposely exclude atheists and minority religious groups from invocation opportunities.
Kavanaugh would also further erode the tenuous prohibitions on religious displays on government property, including Ten Commandment monuments, nativity scenes, and required displays of the “In God We Trust” motto.
The practice is “part of the fabric of our society” such that the invocation of God was “not, in these circumstances, an ‘establishment’ of religion … [but] simply a tolerable acknowledgment of beliefs widely held among the people of this country.” […] Stripping government ceremonies of any references to God or religious expression would reflect unwarranted hostility to religion and would, in effect, ‘establish’ atheism.
— Judge Kavanaugh in Newdow v. Roberts
Injecting Religion into Public Schools
Judge Kavanaugh even disagrees with limits on government-promoted religious activities in public schools, where atheist and minority-religion students are frequently targets of harassment, exclusion, and discrimination.
In 1999, Kavanaugh authored a brief in the landmark Santa Fe Independent School District v. Doe case in which he argued that not only were student-led prayers at football games constitutional, but criticized previous Supreme Court rulings about religious intrusion into public schools. Kavanaugh wrote that it would be unconstitutional to prevent students from delivering prayers or sectarian religious speeches to a captive audience of students at events like graduations or at the beginning of the school day as long as the selection of student speakers was done in a neutral way, such as holding a vote.
Kavanaugh, in the same brief, also argued that the constitutional prohibition on government funding of religious activities “is of questionable validity and is inconsistent with the thrust of the Court’s modern jurisprudence.” In a recent speech to the American Enterprise Institute, Kavanaugh went even further and advocated for direct government funding of religious schools and houses of worship as long as the funds were part of a “neutral program.”
Why It Matters
In the Santa Fe decision, the Supreme Court rejected Kavanaugh’s arguments in a 6-3 ruling. The Court ruled that schools could not use students to get around the constitutional requirement of religious neutrality from public schools. With additions of Chief Justice Roberts and Justices Gorsuch and Alito to the court since the Santa Fe decision (Justice Clarence Thomas was already serving on the Court), Kavanaugh would be the fifth vote to overturn this important protection for atheist and minority religion students.
Kavanaugh could prove to be the deciding vote on cases related to school vouchers, the direct funding of religious instruction by taxpayers, or on cases testing the limits of the 2017 decision Trinity Lutheran Church of Columbia v. Comer that allowed taxpayer money to be given directly to a church to resurface its private playground.
The Court has suggested that neutrality may not suffice in that limited class of cases where government monies in a neutral benefits program would go directly to religious institutions. Of course, that exception is of questionable validity and is inconsistent with the thrust of the Court’s modern jurisprudence establishing neutrality as an Establishment Clause safe harbor.
— Brett Kavanaugh in a brief for Santa Fe ISD v. Doe
Using Religion as a Weapon
In a 2015 dissenting opinion in Priests for Life v. U.S. Department of Health and Human Services, Judge Kavanaugh argued that a religious accommodation from the Affordable Care Act that allowed non-profit employers with religious objections to providing contraception coverage to their employees to opt out of doing so was in violation of the Religious Freedom Restoration Act (RFRA).
That accommodation required employers to fill out a one-page form notifying their insurer or the government.
Eight of the nine federal circuit courts that heard challenges to the accommodation to the contraception mandate in the Affordable Care Act disagreed with Kavanaugh’s argument.
In Judge Kavanaugh’s view, a business simply claiming that the law burdens their sincere religious beliefs is enough. It doesn’t matter if their beliefs are reasonable or even correct.
Why It Matters
Religious extremists are trying to carve out massive exemptions from civil rights laws, public accommodation laws, and many other generally applicable laws for individuals, nonprofits, and even for-profit businesses, even when those exemptions would cause harm to other people.
The Supreme Court will almost certainly hear cases involving religious business owners who seek to operate in the public sphere but deny service to LGBTQ customers, religious minorities, or atheists. We are already seeing dozens of proposed laws across the nation that would allow religiously motivated discrimination in adoption and foster care placement, as well as in public accommodations.
Kavanaugh’s record makes his position on these issues clear: He will be the decisive vote that would allow religion to be used as a weapon by business owners against atheists, religious minorities, LGBTQ people, and women.
The Supreme Court has emphasized that judges in RFRA cases may question only the sincerity of a plaintiff’s religious belief, not the correctness or reasonableness of that religious belief. […] The Supreme Court has long stated, moreover, that religious beliefs need not be “acceptable, logical, consistent, or comprehensible to others” in order to merit protection.
— Judge Kavanaugh in Priests for Life v. HHS