It’s a polite fiction that religion isn’t a factor in the American legal system. But religion plays an outsize role, both in judicial decisions and in the decisions of presidents in nominating a judge. President Donald Trump’s latest pick for the Supreme Court, Judge Brett Kavanaugh — a Catholic, whose appointment preserves the Catholic majority on the Supreme Court — will shift the high court dramatically to the right, most noticeably when it comes to religion.
According to their Judicial Common Space scores (a method of measuring justices on a left to right, liberal to conservative scale), Kavanaugh is more conservative than Samuel Alito and Neil Gorsuch, meaning he’s more conservative that even the late Justice Scalia. This seismic shift to the right will perhaps be most obvious on matters of the separation of state and church. Ensuring the secular character of the government is not a panacea, but it’s pretty close and it touches on a host of progressive issues including reproductive rights, the environment, immigration, health care, education, and so much more.
Two of Kavanaugh’s recent opinions illustrate the damage he’s likely to cause. Last year, he wrote a glowering dissent arguing that forcing a 17-year-old immigrant to continue to carry her pregnancy was not an “undue burden.” Two years before that, he wrote another dissent arguing that filling out a five-blank form is a “substantial burden” on the religion of a Catholic group called Priests for Life, one of the countless groups seeking to undermine the Affordable Care Act’s contraception mandate.
In the first case, Kavanaugh’s opinion is all the more harmful given that Texas bans abortions after 20 weeks. As such, Kavanaugh was essentially forcing the teenager to carry the pregnancy to term or return home to a country where abortion is outlawed, which amounts to the same thing.
On appeal, the full D.C. Circuit quickly overruled Kavanaugh’s decision. In what Slate’s Mark Joseph Stern called “one of the most paternalistic, condescending, disingenuous anti-abortion decisions” ever, Kavanaugh dissented. He continued to argue that the choice he tried to force on the pregnant girl “does not impose an undue burden on a woman seeking an abortion.”
In the second case, Priests for Life was not directly attacking the contraception mandate, rather, it was attacking the exemption procedure as a burden on its free exercise of religion. It’s a bit like a conscientious objector challenging the procedure to opt out of the draft.
Hostility to separation of church and state
Before Kavanaugh worked for the George W. Bush White House and before he was a federal judge — which is to say, perhaps before his guard was up — he maligned First Amendment advocates with strident language in briefs to the Supreme Court on state-church cases.
One such case involved the Santa Fe Independent School District in Texas. In the 1990s, the district organized prayer at school events, such as football games and graduations. A Catholic and Mormon family in the district challenged these prayers and the case was litigated for nearly a decade, eventually reaching the Supreme Court in 2000.
Along the way, the school district contorted itself to salvage the prayers that courts kept striking down. Eventually, it landed on a policy of letting students vote on whether or not to have a “brief invocation and/or message to be delivered during the pre-game ceremonies.”
But as everyone involved in the case knew, this policy was all about keeping children in the public schools exposed to a particular religion.
On behalf of then-Rep. Steve Largent (R-OK) and J.C. Watts, both former professional football players, Kavanaugh wrote an amicus brief defending the use of the machinery of the state to impose prayers on students.
Kavanaugh began by advancing the fictional and ahistorical argument that the current prayer policy was simply about facilitating speech. In other words, he ignored the school district’s previous attempts to use this policy to promote religion. Then, he argued that the policy, which states four times that students will deliver an “invocation and/or message,” is “entirely neutral toward religion and religious speech.” He even tried to liken a policy for an “invocation or message” imposed on everyone over a loudspeaker to a moment of silence.
Six justices on the Supreme Court, including Justice Anthony Kennedy, disagreed and, in Santa Fe Independent School District v. Doe, struck down the policy and prayers delivered via the public address system at school-scheduled, school-sponsored events, even if student-led.
Any attorney can get the law wrong and every case must have a loser. But the tone Kavanaugh uses — and tone is everything these days — to describe advocates of state-church separation is alarming.
There is no such thing as freedom of religion without a government that is free from religion, without a secular government. Religious minorities typically support state-church separation, because it is only a threat to religious privilege. To defend that privilege, Kavanaugh attacked the religious families that brought the lawsuit and their lawyers in the brief as “absolutist,” “hostile to religion in any form,” campaigning for an “Orwellian world,” and seeking “the full extermination of private religious speech from the public schools” or attempting “to cleanse public schools throughout the country of private religious speech.”
Absolutist, hostile, Orwellian, full extermination, cleanse public schools — these charged words culminate with Kavanaugh invoking Nazis and arguing that, if the justices were to decide the case in favor of the plaintiffs (religious minorities), Christians would be relegated “to bottom-of-the-barrel status in our society — below socialists and Nazis and Klan members and panhandlers and ideological and political advocacy groups of all stripes.”
Belligerent tone and bad arguments aside, Kavanaugh makes a truly alarming argument for citizens concerned about religious freedom and preserving our secular government. Though he does not state it explicitly, the brief makes it clear that Kavanaugh would dislodge the keystone in the wall of separation: the Lemon Test.
This is the test courts are meant to apply when determining whether a state action violates the Establishment Clause of the First Amendment. Government actions must have not have a religious purpose, must not advance or inhibit religion, and must not entangle the government with religion. If any of these requirements is not met, the action is unconstitutional. Conservative justices like Scalia and Thomas attacked it for years, but it has survived. It seems clear Kavanaugh will vote to overturn it: “In Establishment Clause cases, the search for an overarching test is not always necessary, and can sometimes be counterproductive or even harmful.”
Emphasis on tradition
Kavanaugh continued to show hostility to state-church separation on the D.C. Circuit, deciding critical cases involving the government promoting religion based on tradition — an argument that essentially states that there is no better reason for doing something other than, well, we’ve always done it that way. What’s worse, when relying on history to decide such cases, he often gets the history wrong.
In 2010, Kavanaugh’s court, the D.C. Circuit, dismissed a case that challenged two aspects of the 2008 presidential inauguration: (1) Chief Justice Roberts adding the words “so help me God” to the presidential oath, and (2) prayers at the inaugural ceremony. The Court dismissed the case on procedural because, though it was brought before the inauguration, the 2008 ceremony was over and the 2012 ceremony was years away — there was nothing the court could do to redress the injury in the case.
While the court threw out the case, Kavanaugh wrote separately to argue that the court should have heard the case and decided it, on the merits, against the challengers. Kavanaugh believed that the two “long-standing practices do not violate the Establishment Clause.”
Kavanaugh would have upheld adding the words “so help me God,” even though those words do not appear in the oath the Constitution prescribes in Article 2, because, as he said, “By many accounts, George Washington said ‘so help me God’ when he took the first Presidential oath in New York on April 30, 1789.” Tradition is a bad argument, but it’s especially bad when the tradition relied upon is fictional. Washington did not say those words. And no contemporaneous account suggests he did. The phrase has only been in regular use since World War I.
The fight for the Supreme Court has always been about religion
The Constitution prohibits religious tests for public office, but that’s not to say religion wasn’t a factor for the Federalist Society, an organization of conservative lawyers and judges founded by a man of deep Catholic faith, when picking Trump’s possible nominees. The National Review admitted the importance of religion and state-church stances in its endorsement of Kavanaugh, writing that his “positions on these issues stretch back to time before he was on the bench. He is a product of Catholic elementary and high schools. … 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.”
In his announcement Monday, Trump highlighted Kavanaugh’s Catholicism several times. During his speech, Kavanaugh even said that his priest was present.
If religion plays a part in selecting judges, it follows that religion will play a role in the justices’ decisions. As Larry Decker, executive director of the Secular Coalition, pointed out, “Judge Kavanaugh was selected from a list of candidates that were handpicked and carefully vetted by advocacy groups committed to advancing an agenda that places religion above the law.”
The conservative social positions religion takes in the culture war are costly. Religion, and especially conservative religion, is losing ground in this nation. It’s losing ground and the debate on religious discrimination, marriage equality, abortion rights, and countless other issues. While support for Trump among white evangelical Christians is at an all-time high, poll after poll show people leaving the churches and the ranks of nonreligious Americans swelling. Barna, a religious polling outfit, recently found that 21 percent of young Americans are either atheist or agnostic.
That is why the religious right has long sought to capture the Supreme Court. By doing so, it can block progress in U.S. jurisprudence for decades. By putting people, like Kavanaugh, who think that tradition trumps the Constitution, on the court, the religious right not only stops time, but can even turn back the clock.