Brett Kavanaugh and the Road Ahead

Robyn E. Blumner

When the late U.S. Supreme Court Justice William Brennan said in a famous law review article that state courts must “step into the breach,” he was urging defenders of individual rights to start litigating in state court, using state constitutions to continue expanding evolving concepts of liberty.

Brennan’s call in “State Constitutions and the Protection of Individual Rights” came in 1977. It was a reaction then to what he already saw as a worrisome retrenchment of rights by his colleagues on the High Court. Salvaging the gains made by the Warren court and maintaining forward progress would require an alternate strategy, Brennan thought. The rights embedded in state constitutions offered one salient option.

Brennan’s counsel was a bit premature. Think about the time he was writing, which was not long after the High Court’s 1973 decision in Roe v. Wade legalized abortion across the country. The court at that time was still the best chance to promote liberty in broad strokes. There were reversals, to be sure, but in the intervening years the Supreme Court has also done our side some solid favors. It kept creationism out of public school science curricula; prevented student-led public-school prayers at graduation ceremonies and football games; expanded freedom of speech, including the right to burn a flag in protest; legalized gay relationships; and established same-sex marriage as a constitutional right.

But now, as we face the confirmation of Judge Brett Kavanaugh to the U.S. Supreme Court and the cementing of a retrograde majority for the foreseeable future, it may be time to take Brennan’s counsel. If the only outcome of bringing new Establishment Clause cases is the reversal of church-state–separation gains made over decades of legal effort, we will have to set that option aside.

It cannot be mentioned often enough that Kavanaugh gave a speech just this past year in which he lauded the late U.S. Supreme Court Justice William Rehnquist’s distaste for church-state separation. Kavanaugh delighted over the court’s 2002 decision to approve an Ohio school voucher program that sent taxpayer money to religious schools, a case in which Rehnquist wrote the majority 5–4 opinion. Kavanaugh noted approvingly Rehnquist’s views that the wall metaphor was “based on bad history” and “useless as a guide to judging.” When Kavanaugh said that Rehnquist was “central in changing the jurisprudence [of the Establishment Clause],” it was its shrinking application that he was applauding.

Kavanaugh’s addition to the Supreme Court forces us to pivot, but state courts are a clunky way to move the ball. In state court you don’t build precedent across multiple states at the same time, as you do in the federal appellate system. Still, the legal zeitgeist from one state to another can be influential in positive ways. Remember the way same-sex marriage became legal? First, in 1999 the Vermont Supreme Court, interpreting its own state constitution, ruled that same-sex couples are entitled to “the same benefits and protections afforded by Vermont law to married opposite-sex couples.” That led the Vermont legislature, with this legal gun to its head, to recognize gay civil unions. Then, in 2004, the Massachusetts Supreme Judicial Court ruled that it was unconstitutional under the Massachusetts state constitution to deny same-sex couples the right to marry. Other state courts haltingly followed suit. By the time the issue was decided by the U.S. Supreme Court in 2015, same-sex marriage had been legalized in thirty-seven states and the District of Columbia, whether by state or federal court rulings, legislative enactment, or voter action.

Something that seemed impossible only a few years earlier was now black-letter law.

If Roe is overturned, which it might be as early as next term, a woman’s right to choose an abortion then becomes an issue to be fought state by state. The backlash could shift the politics of some purple states, moving them more firmly into blue territory. That could have a domino effect impacting who gets appointed to state appellate courts and making a state-court strategy even more appealing.

Team Church-State Separation should be particularly golden in those thirty-eight states that have No-Aid provisions in their state constitutions. Those über–Establishment Clauses expressly forbid states from promoting or supporting religious schools and institutions, whether directly or indirectly. These are muscular provisions that go well beyond the federal constitution to prevent the entanglement of religion and government and keep tax money from flowing into church coffers. Every church-state case in those states should be a home run.

But that is not always the case. Red states often try to sidle past their No-Aid strictures. Florida, for instance, devotes nearly $1 billion toward private school voucher programs with the bulk of funds going to religiously affiliated schools, despite a strict prohibition on tax money used in that way. For the main program, the state uses a legislative trick. By giving corporations a dollar-for-dollar state tax credit when they give to the voucher fund run by a nonprofit—and by strongly encouraging that giving—the state uses a backdoor to fund religious education. The Florida Supreme Court ruled in 2017 that the state’s largest teachers’ union didn’t have standing to challenge the program—a convenient way for the High Court to avoid doing its job.

A new expansion is to begin during the coming school year that would allow any student who claims to have been bullied in public school to qualify for private-school vouchers—no verification of the bullying claim is necessary. Proponents consider this a model for other states. It’s being paid for by Florida forgoing a portion of state taxes on new-car purchases. Individual car buyers will be given the option of diverting $105 in state taxes to a voucher fund run by a nonprofit instead, adding up to millions of dollars. All this legerdemaining should be illegal, but so far it’s not.

The point is, when the people in power want to spend your tax dollars to proselytize the next generation, they will find a way to do so.

Another worry is whether the U.S. Supreme Court will start eviscerating No-Aid clauses. Two U.S. Supreme Court cases directly consider whether state No-Aid provisions interfere with religious freedom under the federal Free Exercise Clause. The first, Locke v. Davey, upheld a Washington state decision to deny generally available scholarship funding to those seeking a degree in devotional theology. Interesting side note: Rehnquist wrote the majority opinion—a case assiduously avoided by Kavanaugh in his pro-Rehnquist remarks.

But Kavanaugh did highlight the second case, Trinity Lutheran Church v. Comer, a case decided this past year, after Rehnquist had been dead nearly twelve years. In that case, actions taken with respect to Missouri’s No-Aid amendment were found to violate the Free Exercise Clause of the U.S. Constitution when a church’s school playground was denied a state grant for resurfacing that was available to school playgrounds without a religious affiliation. Kavanaugh clearly liked this result, even as he stayed mum on Davey. Undoubtedly he will be a vote for limiting No-Aid clauses, perhaps to the point of their complete impotence.

While our legal strategy may be to reduce our presence in federal courts, there are plenty of religious Right groups looking to exploit the opportunity to get religion questions before a friendly High Court. The Alliance Defending Freedom (ADF) is a Christian legal army with a budget of $50 million and a self-claimed 3,200 allied attorneys nationwide. In its brochure, ADF calls these attorneys “high-caliber, accomplished Christian attorneys who use their God-given legal skills to protect the right of people to freely and peacefully live out their faith.”

As a prerequisite to work at ADF as a career, you have to agree that the Bible is inerrant, homosexuality and abortion are sins, and the sinful will “suffer the punishment of Hell.”

ADF and similar groups will be looking to expand religious privilege, to let Christians use religious excuses to get out of anti-discrimination laws that require serving gay customers, or escape rules that require respecting women’s reproductive rights. They will be looking to allow more encroachment of religion, prayer, and religious displays and ceremonies into government and the public schools and more tax money to be directed toward religious organizations. They will likely attempt to have the law explicitly prefer religion over nonreligion—leaving atheists in the legal dust. And who knows what will happen to evolution education and the persistent effort by fundamentalists to push creationism into science classrooms?

We will be watching these efforts to strategically enter amicuscuriae briefs at earlier points along their legal route. Potential allies here are minority religions that see their rights as at risk if the majority’s religion is allowed to overtake secular government. The more we are able to partner with religious groups that see their interests aligned with those of nonbelievers, the better.

While things look bleak, we have to remember that this is a long game, and demographics are on our side. The United States is secularizing. Young adults are leaving organized religion at a healthy pace with more than a third saying they are part of the so-called “Nones.” The number of self-declared atheists and agnostics is now into the double digits and growing. As more nonbelievers become public with their views, there will be more general acceptance as well as a stronger sense of shared identity. Predictions that religion will win out over time because the faithful out-procreate the rest of us only stand up if you think children born to religious households will stay religious themselves. And that’s not likely.

For now, though, we need to work together to limit the damage of a Roberts court with Kavanaugh as the fifth vote against church-state separation. We can’t necessarily rely on the courts alone. The Center for Inquiry (CFI) has a lobbyist to activate secular voters and citizen lobbyists. The organization’s branches and campus groups are being briefed on the issues. There is finally a Congressional Freethought Caucus to represent our views. We are working hard to organize and operationalize these pockets of influence. We are using digital communications to reach millions of people, and we urge those who have been harboring similar concerns about society’s direction to join us in this effort.

Americans hold deep regard for the idea that religion and government should occupy separate spheres. With Kavanaugh on the High Court, this core commitment will be tested. It will fall to Americans themselves to save us from a slide into theocracy-lite. Americans and CFI.

Robyn E. Blumner

Robyn E. Blumner is the CEO of the Center for Inquiry and the executive director of the Richard Dawkins Foundation for Reason &, Science. She was a nationally syndicated columnist and editorial writer for the Tampa Bay Times (formerly the St. Petersburg Times) for sixteen years.