People For the American Way's African American Ministers In Action and our faith-based, nontheist, and religious liberty allies are voicing our shared concerns about Brett Kavanaugh, President Trump’s nominee to succeed Justice Anthony Kennedy on the U.S. Supreme Court. Through this interfaith coalition, AAMIA is urging senators to ask Kavanaugh hard questions about his record on church-state separation and to demand the release of all relevant documents that will shed light on whether he will uphold this fundamental constitutional guarantee. So far, the evidence suggests that Kavanaugh would side with his "first judicial hero," the late Chief Justice William Rehnquist, and reject the notion that the Establishment Clause commands strict separation. You can download our letter here.
Dear Senator:
The undersigned 37 national faith-based, nontheist, and religious liberty organizations share a commitment to individual freedom and the separation of religion and government, two of the tenets on which this country was founded. We are united in our genuine concerns about the nomination of Judge Brett Kavanaugh to be the next Supreme Court justice. In particular, Judge Kavanaugh’s record suggests that he would not preserve the wall of separation between church and state, long used to ensure the protections guaranteed to us in the First Amendment to the U.S. Constitution. As you fulfill your role to advise and consent on the nomination, we urge you to ask Judge Kavanaugh hard questions and demand the release of relevant records that will help to determine whether he will uphold the protections guaranteed to all by the Establishment Clause of the United States Constitution.
The separation of church and state is the linchpin of religious freedom and one of the hallmarks of American democracy. It ensures that each person has the right to choose whether to be religious or nonreligious without pressure from the government. It safeguards houses of worship from intrusion by the government and prevents religious institutions from using the mechanisms of government to impose their religion on others. It protects parents who want to send their children to public schools without fear that they will be coerced into participating in prayer or religious activities. It protects taxpayers from being forced to fund the religious activities and education of others. And, it ensures that all Americans feel welcome and treated equally under the law regardless of their religion.
Judge Brett Kavanaugh, however, appears to reject the commonly accepted legal principle that the Establishment Clause creates a “wall of separation.” In a 2017 lecture given to the American Enterprise Institute, he praised former Chief Justice William Rehnquist for, in Judge Kavanaugh’s words, “convincing the Court that the wall metaphor was wrong as a matter of law and history.” Before voting on his nomination, it is important that the Senate determine whether Judge Kavanaugh supports or rejects this fundamental constitutional principle. We cannot afford to have a Supreme Court that undermines the separation of church and state.
In his AEI speech, Judge Brett Kavanaugh also applauded Justice Rehnquist for dissenting from opinions that struck down public school-sponsored prayer at graduations and sporting events. This speech, along with the amicus brief he authored in Santa Fe Independent School District v. Doe in the Supreme Court, suggests the he may reject five decades of Supreme Court rulings that bar public schools from sponsoring prayer and religious activities. In his brief, Judge Kavanaugh not only contends that school-sponsored prayers at football games are constitutional, but that the Constitution requires public schools in some circumstances to allow students to deliver prayers and religious messages to a captive audience of other students in the classroom and at public school events. Justice Kennedy joined the 6-3 opinion rejecting the arguments Judge Kavanaugh made in his brief, but Judge Kavanaugh’s nomination could change the outcome of future cases. The Senate must ensure that Judge Kavanaugh will protect the right of parents and students to attend our public schools without being coerced to participate in religious activities or proselytized at school events.
In addition, Judge Kavanaugh’s writings and positions suggest that if he were confirmed, the Court could erase one of the Establishment Clause’s most important protections: the prohibition on taxpayer dollars being used to fund religious organizations, activities, and institutions. In the briefs he authored in both Santa Fe and Good News Club v. Milford Central School, Judge Kavanaugh indicated that he opposes the constitutional bar on using taxpayer dollars to pay for religious activities in circumstances where the funds are available to both religious and nonreligious applicants. And in Bush v. Holmes, he argued that a Florida private school voucher program that funded religious schools did not violate the state constitution’s bar on funding religious institutions. Although unsuccessful in Holmes, the adoption of his arguments could leave Florida’s constitutional provision and those like it in 37 other states with little to no meaning, ushering in private school voucher programs that fund religious schools and education. We urge the Senate, therefore, to ensure that Judge Kavanaugh would follow longstanding constitutional jurisprudence holding taxpayers should never be forced to fund religious activities and education. That is not the role of the government.
Judge Brett Kavanaugh’s opinions and writings raise concerns that he would allow broad religious exemptions that could harm other people. He issued a dissent in Priests for Life v. U.S. Department of Health and Human Services, siding with a religious organization that argued that filling out a form to request a religious exemption burdened its religious exercise. His opinion, which would have made it more difficult for the government to ensure that women had access to birth control, is at odds with eight of the nine federal appeals courts that heard challenges to the same religious exemption. It raises concerns that Judge Kavanaugh could require the government to carve out religious exemptions even when they would cause real harm to other people.
The separation of church and state ensures religious freedom for all. Accordingly, we urge you to ask Judge Kavanaugh pointed questions and seek relevant documents that will shed light on whether he will uphold this fundamental protection.