In a speech he gave at the American Enterprise Institute last September, Supreme Court nominee Brett Kavanaugh not only praised the late Chief Justice William Rehnquist for dissenting in Roe v. Wade, he rejected the idea of a “wall of separation between church and state.”
Unlike legal opinions in which he would be bound by precedent, this speech indicated his own views on the topic — if confirmed to the Supreme Court, he would have the ability to strike down laws or change them altogether in accordance with his views.
The speech focuses on Rehnquist’s history, which Kavanaugh admired, and that included the former Chief Justice’s views on religion and politics. The LA Times reports:
Turning to religion, Kavanaugh said Rehnquist had maintained that the “wall of separation between church and state” was a misleading metaphor “based on bad history.”
“Throughout his tenure and to this day,” he added, the court has “sought to cordon off public schools from state-sponsored religious prayers. But Rehnquist had much more success in ensuring that religious schools and religious institutions could participate as equals in society and in state benefit programs.”
In 2002, he noted, Rehnquist wrote the court’s opinion upholding a state law that gave parents tax money to pay for sending their children to religious schools. And just last year, the court upheld a Missouri church’s claim that it had a right to receive state funds to pay for a new school playground. “There again, the Rehnquist legacy was at work,” Kavanaugh said.
The criticism of those cases is not that religious schools and institutions can’t participate as “equals,” but that groups not paying taxes still wanted taxpayer funding to promote their private religious beliefs. By not having to spend its own money on a “new school playground” in the Trinity Lutheran case, the church could conceivably use that funding to promote religion in other ways. (Even building a new playground could arguably be considered a tool for proselytizing since the intention is to draw people into the church.)
Kavanaugh is fine with that. Which means we can expect to see him supporting churches that argue they should get taxpayer money to beautify their windows or renovate their buildings all for ostensibly secular reasons.
Obviously, Kavanaugh’s open support of Rehnquist’s abortion decision is the bigger story here — for everyone except Sen. Susan Collins, who will just pretend he didn’t say what he totally said — but his confirmation would eventually create a gigantic loophole for religious groups to avoid paying taxes while being funded in part by the government.
Keep in mind that Kavanaugh already rejected an atheist’s lawsuit against a religious inauguration ceremony on its merits even when his colleagues dismissed it on a technicality. He also wrote an amicus brief in a major case involving students delivering prayer over the loudspeakers before high school football games. The Court eventually said that was illegal, but not before Kavanaugh said religious neutrality would be the equivalent of “banning” the students’ prayers. (They were always welcome to pray on their own.)
Kavanaugh wants to create a hole in that wall of separation just large enough for churches to squeeze through. It’s not the only reason senators should reject him, but it’s a pretty damn important one.