Brett Kavanaugh, Critical Threat to Church/State Separation if Confirmed to the Supreme Court

Edward Tabash

Kennedy’s Retirement from the Supreme Court Is a Disaster

The president has nominated Judge Brett Kavanaugh to the United States Supreme Court to replace the retiring Justice Anthony Kennedy. If we are to rescue whatever is left of legally protected equality for nonbelievers, it is urgent that we oppose this nomination.

The Proper Understanding of Church/State Separation: Equality for Everyone

Since 1947, the Court has had a minimum five vote majority affirming that no branch of government can favor religious belief over nonbelief. While there have been a number of decisions upholding the special privileging of religion in a manner not completely consistent with the principle of full equality for nonbelievers, there always were at least five justices who would explicitly state that government cannot generally favor religious views over nonreligious ones. Kennedy was among them.

Here is an example of how the Court has affirmed the constitutional equality of nonbelievers: “We repeat and again reaffirm that neither a State nor the Federal Government can constitutionally force a person to ‘profess a belief or disbelief in any religion.’ Neither can constitutionally pass laws or impose requirements which aid all religions as against nonbelievers.” Torcaso v. Watkins, 367 U.S. 488, 495 (1961). This benevolent view, which is the historically correct interpretation of the religion clauses of the First Amendment, has the advantage of including everyone, believers and nonbelievers, as equals in the protective embrace of the Constitution. The opposing view, which is still currently a minority view, insists that all levels of government can openly favor belief over nonbelief. This means that the government can officially declare theism to be preferable to atheism.

The Oppressive View of Government Favoritism For Religion Under a New Majority: How Far Could Government Go in Giving Believers Greater Rights than Nonbelievers?

A very chilling formulation of this looming new majority view is presented in what was, luckily, still a dissenting opinion by the late Justice Scalia: “Besides appealing to the demonstrably false principle that the government cannot favor religion over irreligion, today’s opinion suggests that the posting of the Ten Commandments violates the principle that the government cannot favor one religion over another. … It is entirely clear from our Nation’s historical practices that the Establishment Clause permits this disregard of polytheists and believers in unconcerned deities, just as it permits the disregard of devout atheists.” McCreary County v. American Civil Liberties Union of Ky., 545 US 844, 893 (2005). What does it mean to say that “the Establishment Clause permits the disregard of devout atheists?” How far would a new majority of justices who harbor such a view allow this “disregard” to go? Would they allow lending institutions to no longer make loans to anyone who does not affirm a belief in God? Would they allow states to pass laws prohibiting anyone who does not acknowledge belief in God from testifying in court? If government could now favor “religion over irreligion,” what are the specific legal rights that could be given to the religious that no longer had to be equally provided to atheists?

Scalia also included “polytheists” and “believers in unconcerned deities” among those he claimed the Establishment Clause permits government to disregard. This would mean that government could disfavor those who adhere to various types of Buddhist or Hindu sects. Government could also disfavor “believers in unconcerned deities” such as Deists, like Thomas Jefferson, who believe in a deity that created the universe and then took an eternal coffee break. Scalia’s insistence that the Constitution permits the disregard of people based on what they believe about a supernatural being or beings would leave open-ended the degree to which such discrimination can be extended to limit the rights of those who do not believe in a monotheistic deity.

Kavanaugh Approves of Eroding Church/State Separation and Privileging Religion

We have compelling reasons to fear that Kavanaugh will provide the fifth vote to decimate church/state separation in ways that Kennedy never did nor would have.

In a 2017 speech1, Kavanaugh praised the efforts of former Chief Justice William Rehnquist to undo a “strict wall of separation between church and state.” Kavanaugh approved of Rehnquist’s characterization of the “wall” as “based on bad history.” These Rehnquist statements that Kavanaugh praised were contained in a dissent in Wallace v. Jaffree, 472 U.S. 38 (1985). In that case, a majority of the Court struck down an Alabama statute that required a moment of silence in public schools, because the legislative history revealed that legislators really wanted to reintroduce public school prayer. It’s frightening that Kavanaugh endorses a dissent that approves of the contention by early nineteenth century Supreme Court justice Joseph Story that “Christianity ought to receive encouragement from the state,” 472 U.S. at 104. In this same speech, Kavanaugh praised Rehnquist’s legacy for leading to the decision in Town of Greece v. Galloway, 134 S.Ct. 1811 (2014), which upheld the practice of formal prayer at local government meetings.

Kavanaugh Believes Neutrality between Belief and Nonbelief Shows Hostility to Religion

When nonbelievers challenged sectarian prayers at presidential inaugurations, the majority opinion didn’t address any substantive issues, upholding dismissal of the case because of questions of mootness and standing to sue. However, Kavanaugh authored a concurring opinion arguing for the constitutionality of the prayers. He wrote: “[S]tripping government ceremonies of any references to God or religious expression would reflect unwarranted hostility to religion and would, in effect, ‘establish’ atheism.” Newdow v Roberts, 603 F.3d 1002, 1016 (D.C. Cir. 2010). This is a horrendously prejudicial view for a potential Supreme Court justice to have of atheism. By Kavanaugh’s very reasoning, we could equally assert that “stripping government ceremonies of any references to” a godless, naturalistic universe would reflect unwarranted hostility to atheism and, in effect “establish” religion. Ominously, Kavanaugh has completely ignored the issue of equality between believers and nonbelievers.

Kavanaugh Did Not Stop the Navy from Favoring Catholic Chaplains over Protestant Chaplains, even if Greater Retirement Benefits Were Actually Provided to Catholic Clergy.

Kavanaugh wrote the majority opinion in In re Navy Chaplaincy; Chaplaincy of Full Gospel Churches, et al., v. United States Navy, et al., 534 F.3d 756 (2008). An organization of Protestant chaplains sued the Navy because of alleged preferential retirement benefits provided to only Catholic chaplains. Kavanaugh took the position that even if the claims of such overt religious preferentialism on the part of the Navy were true, the plaintiffs still had no standing unless they could show direct injury to themselves, 534 F.3d at 760. He wrote that even if the Navy were conveying a message of second-class citizenship to Protestants generally, these plaintiffs didn’t suffer sufficient injury to have standing to sue. So Kavanaugh is saying that even such a stark display of religious favoritism by the military was not actionable in this case.

In dissent, Judge Judith Rogers wrote that everyone who is left out of being part of the preferred belief system has a liberty interest, sufficient to confer standing, in seeing to it that government does not engage in religious preferentialism, 534 F.3d at 765. Kavanaugh would provide the fifth vote on the Supreme Court to allow government to favor “religion over irreligion.” Would he also vote to allow government to prefer one religion over others?

Kavanaugh Would Allow Only Religious Claimants Exemptions from Complying with Laws that Are Applicable to Everyone Else, So Long as their Religious Beliefs Are Sincere

Under the Affordable Care Act, regulations were issued so that some employers with religious objections could opt out of the otherwise universally applicable mandate that employers provide insurance coverage for contraception. Such religious employers were required to file a form alerting either the government or the insurer that they would not provide coverage for contraception. Once in receipt of such notification, the insurer has to provide this coverage directly to employees under a separate plan. In Priests for Life v United States HHS, 808 F.3d 1 (D.C. Cir. 2015), an organization of Catholic priests who oppose abortion and contraception wanted to opt out of even this minimal notification provision. They claimed that to file either form with the federal government or with the insurer made them participate in the process whereby employees would ultimately obtain insurance coverage for contraception. The Court of Appeals for the District of Columbia, sitting en banc—which means all judges on the court participated in the decision—ruled against these priests.

Out of twelve judges, Kavanaugh was one of three dissenters. He wrote that so long as employers sincerely believe that a course of conduct violates their religious beliefs, the government cannot inquire any further and must not force compliance even with something as minimal as filling out one of two forms, 808 F. 3d at 19. Kavanaugh maintained that once the priests merely say that they sincerely believe that giving such notice makes them participate in a process that will result in their employees still being able to obtain insurance coverage for contraception, they should be exempt from even this bare minimum notice requirement.

Such religious claimants are like spoiled brats throwing a tantrum in the sandbox. They are not satisfied with being able to opt out of providing contraception coverage for their employees, which is already an enormous concession that they enjoy. They don’t even want to have to notify anyone of their decision so that the lack of notification can further hamper the effort by these employees to obtain such coverage on their own. With enablers such as Kavanaugh, our legal system is in danger of allowing only the religious to have special rights to disobey laws that are binding on everyone else.

Kavanaugh Would Allow Student-led Prayer to Be an Official Part of School Functions

In Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000), the Supreme Court by a 6-to-3 majority struck down a policy whereby a school district allowed student-initiated and student-led prayer as a formal ceremony before the start of high school football games. The majority rightly saw this use of students as a subterfuge to promote school sponsored prayer, 530 U.S. at 308. Kavanaugh authored an amicus brief, in which he argued that these prayers are constitutional.2The football games played by students were a function of the public school. The prayers that preceded the game were part of the overall event that the school was putting on. Yet Kavanaugh referred to these prayers as “private religious speech,”3 thus ignoring that the prayers were an integral component of a public school function. The student-led nature of the prayers was a smokescreen. It would be like a group of students praying over the loudspeaker at the start of the school day and then having the school district claim this was not formal school prayer because the students doing the praying were doing so on their own. In the meantime, the other students, as well as attendees at football games, would have to listen to these prayers. The eagerness of religious students to commandeer a school facility or function, when given the chance, in order to promote their religious views does not rescue such prayer from being an unconstitutional use of the public schools.

Kennedy was part of the majority in declaring unconstitutional the prayers that Kavanaugh defended. Again, Kennedy was much more supportive of church/state separation than Kavanaugh has been.

Kavanaugh Would Allow Religious Groups to Proselytize Elementary School Children on School Grounds Right after the School Day Finishes

In Good News Club v. Milford Central School, 533 U.S. 98 (2001) the Court held that a private Christian proselytizing organization had the right to come onto public elementary school grounds, after hours, to conduct prayer meetings that seek to convert children to Christianity. A child’s attendance was voluntarily. Dissenting, Justice Souter argued that the timing and format of the Good News Club’s gatherings likely conveys to young children that these proselytizing meetings have the imprimatur of the school itself. Only elementary school children may attend the meetings and they began so soon after the close of regular school activities that children could easily get the impression that these gatherings are part of the official school day, 533 U.S. at 144.

Kavanaugh authored an amicus brief in support of the Good News Club, arguing that it had a right to conduct these meetings on public elementary school grounds.4 He wrote that the Constitution does not require and does not permit discrimination against religious people and religious speech.5 Kavanaugh again misses the point. This is not discrimination against private persons who want to express their religious views. The goal is to prevent public school property and public school events from being used for proselytizing and worship in a manner that involves public schools in promoting religious beliefs.

If Both Believers and Nonbelievers Are to Remain Equal Before the Law, We Must Try to Persuade the Senate to Reject Kavanaugh’s Nomination

We don’t yet know how far a new Court majority, with Kavanaugh’s providing the fifth crucial vote, will go in allowing government to now favor “religion over irreligion.” We church/state separationists are the magnanimous ones in this struggle. We strive for the full legal equality of everyone, regardless of viewpoint on matters of religion. Our opponents want an America that provides special privileges for only the religious. The danger that a new Court majority will permit government to favor religion over atheism is the most imminent threat to a constitutional system that has up to now benevolently protected everyone’s freedom of conscience.

Please immediately contact your two United States senators and urge them to vote against Kavanagh. Urge everyone you know in other states to also contact their senators. Kavanaugh is a clear and present danger to the separation of church and state.

 


  1. From the Bench: The Constitutional Statesmanship of Chief Justice William Rehnquist, 2017 Walter Berns Constitution Day Lecture, by Judge Brett Kavanaugh, http://www.aei.org/wp-content/uploads/2017/12/From-the-Bench.pdf, at pages 12–13.
  2. Brief of Amicus Curiae Congressman Steve Largent and Congressman J. C. Watts in Support of Petitioner, https://www.au.org/sites/default/files/2018-07/Santa%20Fe%20Independent%20School%20Dist%20v%20Doe%20amicus%20brief.pdf.
  3. Ibid., p. 30.
  4. Brief Amicus Curiae of Sally Campbell in Support of Petitioners, https://www.findlawimages.com/efile/supreme/briefs/99-2036/99-2036fo7.pdf.
  5. Ibid., p. 23.

Edward Tabash

Edward Tabash is a constitutional lawyer in the Los Angeles area and chair of the board of directors of the Center for Inquiry. He is recognized for his legal expertise pertaining to the separation of church and state. He is also one of the more well-known atheist debaters in the United States.