With Kavanaugh’s nomination, our civil liberties are in trouble

FFRF is asking you, our members, to call your senators to strongly oppose Kavanaugh. Call 202-224-3121.


Supreme Court nominee Judge Brett Kavanaugh will be a disaster for the constitutional principle of separation between state and church and tilt the court to the religious right for more than a generation.

“If Kavanaugh is confirmed, he will unquestionably eviscerate the Establishment Clause of the First Amendment,” warn FFRF Co-Presidents Dan Barker and Annie Laurie Gaylor. “It seems unlikely the cherished wall of separation between state and church protecting true religious liberty could survive intact. Many of our hard-won freedoms would be gutted.”

There’s no sugarcoating the game-changing nature of Justice Anthony Kennedy’s retirement announcement on June 27. Kennedy was a swing vote. As the Duke Ellington song goes, “It don’t mean a thing if you ain’t got that swing.”

Kennedy was often a disappointment, but his vote really counted when it counted. To give Kennedy his due, he has stood up for secularism in at least four major opinions, although more often voting against strict state/church separation. He even authorized some landmark civil rights cases, including the 1992 Weisman decision evicting commencement prayers and the clergy who gave them from public high schools, and the Obergefell verdict approving marriage equality in 2015. (Notably, Kennedy did not swing in our direction when FFRF’s Hein decision was before the court in 2007.)

Although Kennedy’s record in keeping state and church separate has been spotty at best, replacing him with Kavanaugh will lead to decisions with majority opinions that are far more emphatically hostile to secularism and true religious freedom. It will go from a 5-4 court with Kennedy sometimes swinging to FFRF’s side, to an entrenched 5-4 “anti” court, leaving only Justices Ruth Bader Ginsburg, 85, Stephen Breyer, 80, and the more youthful Elena Kagan and Sonia Sotomayor on the “correct” side.

Further, Kennedy was always a hopeful check against the most egregious cases of government actors using their position to promote religion. With Kavanaugh, the court will be more willing to accept cases that will allow it to drastically repeal Establishment Clause precedent  from the last 70 years, confident that it will always have the five votes it needs.

Kennedy importantly sided with the preservation of Roe v. Wade in several major cases. It is frightening to see CNN legal analyst Jeffrey Toobin tweet his prediction: “Abortion will be illegal in 20 states in 18 months.”

Kavanaugh, a former clerk for Kennedy, would be a threat for a host of important progressive and humanist issues. The 53-year-old Catholic, who currently serves on the U.S. Court of Appeals for the District of Columbia, has seemingly never met a regulation he wouldn’t strike down, including regulations to prevent another financial collapse as in 2008, to protect clean air, clean water, and fight climate change, to enforce safety standards for the auto industry, uphold the Affordable Care Act and protect workers.

Of most relevance to the work of FFRF is Kavanaugh’s disturbing history of working to privilege religion, harm women’s rights and tear down the wall separating state and church.

Two recent decisions illustrate his views, revealing that Kavanaugh seems “less driven by the law than by ideology,” notes FFRF Director of Strategic Response Andrew L. Seidel, who, with FFRF’s Strategic Response Team, researched his record.

Kavanaugh dissented in a 2017 case garnering national attention and concern, involving a pregnant, unaccompanied minor immigrant under detention, whom the Trump administration was preventing from exercising her right to end an unwanted pregnancy. Kavanaugh wrote that forcing the 17-year-old girl to continue her pregnancy for so many weeks she risked being unable to obtain an abortion was not an “undue burden.” Conversely, in a 2015 case, Priests for Life v. HHS, he wrote a dissenting opinion calling it a “substantial burden” on religion for a religious organization wanting to opt out of the contraceptive mandate to be asked simply to fill out a five-blank form — name, corporate name, date, address, signature.

“In Kavanaugh’s legal world, it burdens religion to fill out five blanks on a form, but it’s not a burden to force a teenager to carry an unwanted pregnancy. That is alarming,” adds Seidel.

Kavanaugh’s record

Even while working in private practice he submitted amicus briefs on a number of cases involving the Establishment Clause, always on the wrong side.

In the landmark 2000 case, Santa Fe Independent School District v. Doe, the last big school prayer case decided by the high court, it ruled unconstitutional prayers delivered over the school public address system at school-scheduled, school-sponsored events, including student led.

Kavanaugh wrote an amicus brief defending the imposition of prayers upon students on behalf of U.S. Rep. Steve Largent, a former football player. Throughout the brief, Kavanaugh argued that the case was about “banning” students’ religious speech. It was really about a public school (with its own tradition of imposing prayer) handing religious students a government-owned megaphone to impose the prayers on other students at public school events. That distinction is crucial, and Kavanaugh’s inability to grasp it is disturbing.

Kavanaugh uses inflated language to disparage advocates of state-church separation — in other words, those of us who support the First Amendment — as “absolutist[s],” “hostile to religion in any form,” advocating for an “Orwellian world,” and seeking “the full extermination of private religious speech from the public schools” and “to cleanse public schools throughout the country of private religious speech.”

In an astonishing paragraph, he portrays Christians as beleaguered and downtrodden folks “below socialists and Nazis and Klan members and panhandlers and ideological and political advocacy groups of all stripes,” rather than the privileged majority they are.

In one of the most concerning passages in the brief, Kavanaugh sends a clear signal that he does not think the Supreme Court should even apply legal tests to the Establishment Clause. In other words, it appears he would happily overrule the critical rule of law laid out in Lemon v. Kurtzman (1971), known as “The Lemon Test.” The Lemon Test simply says a government action violates the Establishment Clause if it (1) doesn’t have a secular purpose; or (2) has the primary effect of advancing or inhibiting religion, or (3) fosters excessive entanglement between religion and government. Kavanaugh wrote: “In Establishment Clause cases, the search for an overarching test is not always necessary, and can sometimes be counterproductive or even harmful.”

State-church hostility

The D.C. Circuit dismissed a case taken by atheist Michael Newdow challenging the addition of “so help me God” to the presidential oath and inaugural prayers. Notably, religious language is not present in the oath laid out in Article II of our secular Constitution, yet it is typically added by the chief justice during inaugurations.

When the court threw out the case on procedural grounds, Kavanaugh wrote separately to say that the challengers (including FFRF) should have lost on the merits “because those long-standing practices do not violate the Establishment Clause.” Essentially, Kavanaugh relied on a long history of use of the words “so help me God,” supposedly, he wrote, dating back to George Washington. But Washington never uttered those words. The history of “so help me God,” is considerably shorter. The phrase has only been in regular use since World War I. In any event, that a constitutional violation is longstanding does not make it any less a violation. The argument from tradition is a poor argument which concedes that there is no better reason to continue the practice, and it is disconcerting that Kavanaugh would have relied on it to uphold violations of the First Amendment.

Backed voucher scheme

Kavanaugh represented pro-voucher Florida Gov. Jeb Bush in a constitutional challenge to Florida’s school voucher legislation. Florida plaintiffs — including a branch of the NAACP, the Florida Education Association, and the AFL-CIO — sued Bush and the Florida Department of Education over the allocation of public funds to private schools through a voucher system. The Florida Supreme Court held the voucher system Kavanaugh defended was unconstitutional.

He went back to Florida to help Bush litigate the outcome of Florida’s electoral votes in the disputed Bush-Gore 2000 presidential election. More successful there than with the vouchers, Kavanaugh then went to work in the George W. Bush White House as associate counsel to the president. Bush nominated him to the U.S. Court of Appeals for the District of Columbia in 2003, and after a bitter fight that lasted three years, he finally was seated in 2006.

Would Kavanaugh hold the president accountable for wrongdoing?

While still in private practice, Kavanaugh was a key member of Kenneth Starr’s team investigating President Clinton and was a prominent voice calling for Clinton’s impeachment. But in a turn that seems hypocritical, he has lately written that presidents are under such extraordinary pressure they “should be excused from some of the burdens of ordinary citizenship while serving in office.” This statement was likely received well by Trump, facing a dogged and productive investigation by special counsel Robert Mueller.

Another Catholic

The Constitution prohibits religious tests for public office, but one would think there was a requirement that Catholics hold a majority on the Supreme Court. Although Catholics are about 20 percent of the overall population, five of the nine current justices are Catholic, including outgoing Kennedy. The Kavanaugh nomination would retain the lopsided Catholic majority, and be a lost chance for more diversity (such as a nonreligious justice or even a Protestant!).

The National Review endorsed Kavanaugh partly because of his zealous Catholicism: “He is a lector at his parish, and he volunteers with Catholic charities, teaches and mentors in Catholic (and other) schools, and coaches his daughters’ Catholic Youth Organization (CYO) basketball teams.”

FFRF is committed to fighting any nominee who is so clearly hostile to American secularism.

“This is the legal fight of the century for America. Our nation’s future, our constitution and our civil rights hang in the balance,” says Gaylor.

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