SCOTUS Pick Brett Kavanaugh: Church/State Separation is “Based on Bad History”

Jul 13, 2018

By Hemant Mehta

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.)

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