10 Reasons Brett Kavanaugh Would Be Disaster For State-Church Separation
FFRF has been told that senators are paying attention to the ratio of calls for and against Kavanaugh.
1. Kavanaugh would tear down
2. In an amicus brief to the
3. In that same brief, Kavanaugh used some alarming language to denigrate families, including even religious families, and their advocates seeking to defend the First Amendment's Establishment Clause. He called us "absolutist[s]" who advocate for an "Orwellian world," who seek "the full extermination of private religious speech from the public schools" and "to cleanse public schools throughout the country of private religious speech." Kavanaugh, himself a Catholic, ironically deemed the Catholic and Mormon plaintiffs in the case "hostile to religion in any form."
4. Also in that brief, Kavanaugh all but explicitly stated that he would overturn the central test that courts use to strike down violations of state-church separation: The Lemon Test. This test, codifying long-standing precedent, says that a government action is unconstitutional if it (1) doesn't have a secular purpose; (2) advances or inhibits religion, or (3) entangles the government with religion. Kavanaugh used thinly veiled language to argue for the end of the test, which he asserted "can sometimes be counterproductive or even harmful."
5. Kavanaugh has used "history and tradition" to argue that there should be no real separation between state and church. He's done so throughout his career, from an early private practice brief arguing for prayer at public school events up through his speech accepting the
More importantly, an overreliance on history and tradition in the law retards progress and, at the
6. Kavanaugh fought to uphold vouchers for private religious schools in
7. He would help the Religious Right destroy our public schools. In a 2017 speech, Kavanaugh argued that "religious schools and religious institutions" ought to "receive[] funding or benefits from the state," as long as the funding goes to private institutions that are both "religious and nonreligious." But the vast majority of private schools are religious, so even if funding is available to religious and nonreligious private schools, nearly all ends up supporting religious schools. For instance, 99 percent of the schools participating in the
8. Kavanaugh would eviscerate the vital No Aid protections in state constitutions, which bar the flow of public money to churches and church schools, thereby sending millions of taxpayer dollars to churches and religious organizations. As
9. Kavanaugh defends religious privilege while trampling the rights of women. Last year, he argued unsuccessfully that the government could force a 17-year-old girl detained as an illegal immigrant to continue her unwanted pregnancy -- with conditions that essentially would have forced her to carry the pregnancy to term. But to Kavanaugh, that was not an "undue burden" on her rights. At the same time, Kavanaugh has stated that filling out a simple form is a burden on a Catholic religious organization. In 2015, Priests for Life challenged the opt-out procedure for the Affordable Care Act's contraceptive mandate. Kavanaugh wrote that it is a "substantial burden" on religion merely to ask a religious organization wanting an opt out of the contraceptive mandate to fill out five blanks on a form -- name, corporation name, date, address and signature. Kavanaugh has a double standard on burdens that could be deadly for women.
10. Kavanaugh would weaponize religious freedom. This critical individual right is being redefined by judges like Kavanaugh, who think it grants Christians a license to discriminate and allows them to use the government to impose their religion on others. This was most obvious in his decision in the Priests for Life (mentioned above.) Kavanaugh would also allow religious employers to deny women contraception in spite of the Affordable Care Act's contraception mandate, because of a two-page form. The female employee's freedom is what's really threatened, but Kavanaugh twisted the case in defense of the "religious freedom" of the employer instead.
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