Home > Uncategorized > President Trump’s Supreme Court Pick Will Support the Tearing Down of the Wall Separating Church and State

President Trump’s Supreme Court Pick Will Support the Tearing Down of the Wall Separating Church and State

July 10, 2018

Yesterday’s Politico education post written by Kimberly Hefling provided an analysis of the views of the potential nominees for the Supreme Court in terms of public education policy. Ms. Hefling’s synopsis of Brett Kavanaugh, the judge now nominated to fill the vacancy created when Justice Kennedy retired, reads as follows:

Kavanaugh, who has one of the more lengthy legal records of all the candidates, cheered the late Chief Justice William Rehnquist’s efforts to reverse what Kavanaugh deemed the Supreme Court’s attempts at “erecting a strict wall of separation between church and state” — especially when it comes to schools — in an essay Kavanaugh wrote for the American Enterprise Institute in December.

He wrote that “a majority of the Court throughout his tenure and to this day has sought to cordon off public schools from state-sponsored religious prayer. But Rehnquist had much more success in ensuring that religious schools and religious institutions could participate as equals in society and in state benefits programs, receiving funding or benefits from the state so long as the funding was pursuant to a neutral program that, among other things, included religious and nonreligious institutions alike.”

Kavanaugh noted that “without the line of Rehnquist cases … we never would have seen” last year’s ruling in Trinity LutheranChurch of Columbia vs. Comer, which said that states cannot exclude religious institutions from state programs that have a purely secular intent.

He also predicted in 2000 that school vouchers would one day be upheld by the court. That came during an appearance on CNN’s “Burden of Proof,” in which he said a Supreme Court ruling that year that said federal funds could be used to buy computers for religious schools would lay the groundwork for such a future ruling, according to a transcript of the show.

The essay referenced in the first paragraph was a paean to former Supreme Court justice William Rehnquist, who Mr. Kavanaugh viewed with admiration, particularly when it came to his interpretation of the wall separating church and state. In his essay Mr. Kavanaugh wrote:

William Rehnquist… persuasively criticized the wall metaphor as “based on bad history” and “useless as a guide to judging.” Rehnquist said that the true meaning of the Establishment Clause can be seen only in its history…

…Rehnquist was central in changing the jurisprudence and convincing the Court that the wall metaphor was wrong as a matter of law and history. And that Rehnquist legacy continues, as we see in recent cases such as Town of Greece v. Galloway, which upheld the practice of prayer for local government meetings. And without the line of Rehnquist cases beginning with Mueller v. Allen, we never would have seen last term’s seven-to-two decision in Trinity Lutheran Church of Columbia v. Comer. In that case, only two justices found an Establishment Clause problem in a state program that provided funds to schools, including religious schools, for playgrounds. There again, the Rehnquist legacy was at work.

Given Mr. Kavanaugh’s track record on issues involving separation of church and state and the mindset of the current Secretary of Education and Attorney General, it would not be surprising to see a case involving vouchers for religiously affiliated schools finding its way to the Supreme Court… and given the bent of many State governments when it comes to vouchers such a case will not be difficult to find.

Unlike Mr. Kavanaugh and his cohorts and the prevailing trend to erode the wall separating church and state, I do not believe the wall metaphor was based on bad history but rather common sense and the Founders antipathy for any unification of church and state. Indeed, many of the original settlers of our country were refugees from countries whose governments banned their religious liberty. In writing the constitution the last thing any of the Founders sought was a government that espoused any specific religious affiliation.

I fully expect Mr. Kavanaugh to be appointed. A former clerk for Justice Kennedy, Mr. Kavanaugh does not appear to be radical enough to warrant rejection and his views on church-and-state, while different from mine, are increasingly seen as “mainstream” for as Mr. Kavanaugh noted in his speech, Mr. Rehnquist did alter the prevailing sentiment on the wall metaphor. The only hope for reversing this trend is when a madrassa sues to seek equal protection under the law when a xenophobic state legislature denies them funding.

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