The Kavanaugh Nomination: How Screwed Are We?

Author:Boston, Rob
Position:CHURCH & STATE - Column

The late Chief Justice William H. Rehnquist was no fan of the separation of church and state.

In 1985, when the Supreme Court handed down a decision in a school prayer case called Wallace v. Jaffree, Rehnquist, then an associate justice, decided to cut loose.

"The 'wall of separation between church and state is a metaphor based on bad history, a metaphor which has proved useless as a guide to judging," Rehnquist wrote in his dissent. "It should be frankly and explicitly abandoned."

Shocking words indeed. But that was a long time ago. Rehnquist died in 2005. It's no big deal, right?

Wrong. People's ideas can live on long beyond their deaths, and Rehnquist's certainly have. In 1985 his crabbed interpretation of separation of church and state--which essentially seeks to nullify the views of Roger Williams, Thomas Jefferson, and James Madison--was considered to be outside the mainstream, but it inspired a flock of far-right attorneys and judges. And now one of them, Brett Kavanaugh, has been appointed by President Donald Trump to take Anthony M. Kennedy's seat on the Supreme Court.

Kavanaugh, currently a judge on the US Court of Appeals for the DC Circuit, idolizes Rehnquist and looks to him as a model for how a judge ought to rule. He made this clear during a 2017 speech delivered to the American Enterprise Institute. During that talk, Kavanaugh expressed great admiration for Rehnquist's church-state views, praising him for "changing the jurisprudence and convincing the court that the wall metaphor was wrong as a matter of law and history."

On the major church-state issues of the day--the role of religion in public schools, taxpayer aid to religious institutions, and the definition of "religious freedom" to name just three-- Kavanaugh has consistently been on the wrong side.

While serving as an attorney in private practice, Kavanaugh wrote a legal brief on behalf of two far-right members of Congress in a 2000 case dealing with school-sponsored prayers before high school football games.

The prayers were clearly coercive. Blared over a loudspeaker, they forced all students to take part in a religious exercise whether they wanted to or not. The Supreme Court recognized this and invalidated the practice. But to Kavanaugh, these prayers should have been permitted on the grounds of tradition.

This is one of the key differences between Kennedy and Kavanaugh: Kennedy understood the dangerous effect religious coercion could have on youngsters attending...

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