This column first ran on the Freethought Now! blog at patheos.com/blogs/freethoughtnow.
By Annie Laurie Gaylor
The suspenseful on-again, off-again confirmation hearings were grueling, raising hope until the end that despite all the odds, Brett Kavanaugh might be defeated. His unfortunate confirmation as the newest Supreme Court justice is a game changer for our causes and our country. Shortly after the U.S. Senate shamefully approved Kavanaugh, a photograph was tweeted of an older woman poignantly crying at the site of the protests in Washington, D.C. She was asking: “How are we going to find the strength to keep fighting? Are we going to be out here for another 30 years? I don’t have 30 years left.”
I, too, was sickened watching the male-dominated U.S. Senate ignore the will of the people and confirm a man who stands against true religious liberty and women’s rights, a nominee whom more than 2,400 law professors opposed, and whose behavior even prompted former Justice John Paul Stevens at age 98 to speak out against his confirmation. Like the woman in the photograph, I, too, know that everything I’ve spent my life working for — abortion rights, freethought, secular government — is imperiled.
We at the Freedom From Religion Foundation have been heart-warmed by support since Kavanaugh’s confirmation, from individuals and freethinkers who’ve sent emails, messages, new memberships and donations, telling us they know what a vital role FFRF has played and will need to play in the future. Thank you. We cannot tell you how much your messages and your support mean.
FFRF’s important purpose of guarding the separation between religion and government deeply intersects with women’s battle for reproductive liberty. As FFRF’s principle founder Anne Nicol Gaylor sagely observed: Without separation of church and state, the battle for women’s rights “would never end, because the root cause of the denial of those rights was religion and its control over government. Unless religion is kept in its place, all personal rights will be in jeopardy.” Abortion rights on the Supreme Court have been hanging for years by a 5-4 thread, and now with Kavanaugh replacing Anthony Kennedy, it looks dubious that “religion will be kept in its place” on our highest court.
Dangers of new court
This is the appointment we’ve been dreading for years — the essential takeover of the Supreme Court by a majority of Religious Right justices that could last at least a generation. The dangers Kavanaugh poses to true religious liberty and the work of FFRF can’t be overstated. From the moment that Kavanaugh’s nomination was announced, FFRF has rigorously documented his extremist positions, rulings and work.
This is a judge who concurs with former Chief Justice William Rehnquist that the vaunted constitutional wall of separation is a “bad metaphor,” who actively intervened trying to undo decades of Supreme Court precedent against school-imposed prayer, and who has sided with Catholic and religious organizations against abortion and contraceptive rights.
The Christian Supremacists aren’t playing around. Led by zealous Vice President Mike Pence, who journalists Michael D’Antonio and Michael Eisner call “The Shadow President” in their chilling new biography, today’s emboldened Christian Nationalists in and out of our government openly seek to repeal or cripple Roe v. Wade, even the right to contraception, and to do away with 65 years of firm Supreme Court precedent against the imposition of devotions and prayer upon a captive audience of schoolchildren, among other agendas.
The Christian Nationalists who openly scorn our secular government and Constitution have become emboldened since the 2016 election. As President Trump stacks the federal district and appeals courts with more and more extreme appointments, it is simply inevitable that the courts will grow increasingly hostile to Establishment Clause freedoms. Although nothing comes easy in our work to protect the wall of separation, FFRF has been able to generally rely on strong Supreme Court precedent protecting the freedom of conscience of young, impressionable school children and their parents from government-fostered religious indoctrination. Kavanaugh’s appointment and Trump’s lower court selections will have a chilling effect on liberal judges, just as it emboldens reactionary ones.
We’ve already witnessed this in our current winning case over a 34-foot cross in a park in Pensacola, Fla. Even though we’ve triumphed at the district and appeals court levels, both courts took the unheard of opportunity to actively urge higher courts to overturn precedent they are bound to follow but disagree with. We’ve never seen anything like this before.
Not an abstraction
This case law is not an abstraction to us. We know, admire and work with many of the champions of the First Amendment who have brought and won Establishment Clause challenges before the Supreme Court. Vashti McCollum, who brought the winning lawsuit, McCollum v. Board of Education (1948) against religious instruction in the public schools that all the other school-related Supreme Court decisions are built on, was an FFRF honorary director and friend. Her son, Jim, the erstwhile young boy pressured and bullied to attend religious classes that brought about the landmark challenge, is now himself a retired constitutional attorney and FFRF Lifetime Member. Ellery Schempp, who as a high schooler protested bible reading in his public schools and brought about the resounding ruling Abington Township School District v. Schempp (1963), is also a friend and FFRF Lifetime Member.
We knew Roy Torcaso, another FFRF honorary director, who brought Torcaso v. Watkins (1961) affirming Article 6, Section 3 of the U.S. Constitution that there can be no religious test for public office. Ishmael Jaffree, the Supreme Court victor in Wallace v. Jaffree (1985), who successfully challenged prayer in the guise of meditation in Alabama schools, was FFRF’s first Freethinker of the Year in 1987.
We were honored to meet the Weisman family that sued over clergy prayer at public school graduations, winning their case, Lee v. Weisman (1992). They became FFRF’s Freethinkers of the Year. William Cameron Stone, the attorney who fought and won the landmark case, Stone v. Graham (1980), is a longtime FFRF Life Member. Other Establishment Clause greats we knew included Alton Lemon of the famed “Lemon Test,” who won that famed 1971 case that Kavanaugh has declared he wants to overturn.
Every day, our nine constitutional attorneys invoke these cases.
While political winds may shift every two to four years, terms on the Supreme Court are for life. But already there is speculation about how a Democratic Congress could add justices or otherwise take action to dampen the power of a Religious Right-controlled Supreme Court.
And let’s not forget what the younger woman replied as she photographed the crying woman despairing over the prospect of losing decades of progress for civil liberties in our nation: “I’ll be here. I’ll keep fighting.” So, with your help, will FFRF.
Annie Laurie Gaylor is co-president of FFRF.