Editor's note: As this issue of Church & State was going to press, a vote on Brett Kavanaugh's nomination to the Supreme Court had been delayed due to an allegation that he had committed an act of sexual assault when he was 17.
President Donald Trump's Supreme Court nominee Brett Kavanaugh wasn't terribly forthcoming during his confirmation hearings in early September, but he did voice some dangerous views on church-state separation.
"His comments confirmed what we already suspected," said AU Legislative Director Maggie Garrett on AU's "Wall of Separation" blog. "Kavanaugh is a serious threat to the separation of church and state, and therefore to the religious freedom of all Americans. "
Kavanaugh faced two intense days of grilling from Democratic members of the Senate Judiciary Committee on everything from reproductive justice and health care access to presidential power and immigrants' rights. The
Republican senators tended to take it easy on their party's nominee, and it was during softball questioning by Texas Republicans Ted Cruz and John Cornyn that Kavanaugh's views on religious freedom first came up.
Cornyn, a former attorney general of Texas, encouraged Kavanaugh to join him in lamenting their loss in Santa Fe Independent School District v. Doe, a 2000 Supreme Court case involving church-state separation. Both had filed friend-of-the-court briefs Cornyn on behalf of the state and Kavanaugh working pro bono on behalf of two U.S. congressmen--in support of the public school-sponsored prayers that were broadcast during football games. The Supreme Court, with Justice Anthony Kennedy in the 6-3 majority, struck down the prayers as unconstitutional.
"I'm not asking for your opinion since likely you'll be called upon to decide cases involving the Establishment Clause in the future," Cornyn said. "But since we had that history together ... I thought I would just tell you that still sticks in my craw."
"I understand, senator," Kavanaugh said. "Certainly, cases I lost ... they still stick in my craw, too."
Kavanaugh then told Cornyn that he believes "there have been some developments" that undermine the Santa Fe decision. He specifically referenced Good News Club v. Milford Central School, a case in which he also had written a friend-of-the-court brief and that allowed a proselytizing religious club to meet in an elementary school after school hours; Greece v. Galloway, which allowed sectarian prayers during a town council meeting under certain conditions; and last year's Trinity Lutheran Church of Columbia v. Comer, which allowed a church to apply for taxpayer funding for the nonreligious purpose of resurfacing a preschool playground.
None of those cases involved school-sponsored prayer, but they have been lauded by those who advocate for taxpayer funding of religious activities and for religion--particularly Christianity--to have more influence in public schools and government.
"Kavanaugh's clear disdain for Santa Fe and his willingness to use these cases to discredit the ruling confirms that he will likely reject five decades of Supreme Court jurisprudence that bars public schools...