It’s a polite fiction that religion isn’t a factor in the American legal system. But religion plays an outsize role, both in judicial decisions and in the decisions of presidents in nominating a judge. President Donald Trump’s latest pick for the Supreme Court, Judge Brett Kavanaugh — a Catholic, whose appointment preserves the Catholic majority on the Supreme Court — will shift the high court dramatically to the right, most noticeably when it comes to religion.
According to their Judicial Common Space scores (a method of measuring justices on a left to right, liberal to conservative scale), Kavanaugh is moreconservative than Samuel Alito and Neil Gorsuch, meaning he’s more conservative that even the late Justice Scalia. This seismic shift to the right will perhaps be most obvious on matters of the separation of state and church. Ensuring the secular character of the government is not a panacea, but it’s pretty close and it touches on a host of progressive issues including reproductive rights, the environment, immigration, health care, education, and so much more.
Two of Kavanaugh’s recent opinions illustrate the damage he’s likely to cause. Last year, he wrote a glowering dissent arguing that forcing a 17-year-old immigrant to continue to carry her pregnancy was not an “undue burden.” Two years before that, he wrote another dissent arguing that filling out a five-blank form is a “substantial burden” on the religion of a Catholic group called Priests for Life, one of the countless groups seeking to undermine the Affordable Care Act’s contraception mandate.
In the first case, Kavanaugh’s opinion is all the more harmful given that Texas bans abortions after 20 weeks. As such, Kavanaugh was essentially forcing the teenager to carry the pregnancy to term or return home to a country where abortion is outlawed, which amounts to the same thing.
On appeal, the full D.C. Circuit quickly overruled Kavanaugh’s decision. In what Slate’s Mark Joseph Stern called “one of the most paternalistic, condescending, disingenuous anti-abortion decisions” ever, Kavanaugh dissented. He continued to argue that the choice he tried to force on the pregnant girl “does not impose an undue burden on a woman seeking an abortion.”
In the second case, Priests for Life was not directly attacking the contraception mandate, rather, it was attacking the exemption procedure as a burden on its free exercise of religion. It’s a bit like a conscientious objector challenging the procedure to opt out of the draft.
Before Kavanaugh worked for the George W. Bush White House and before he was a federal judge — which is to say, perhaps before his guard was up — he maligned First Amendment advocates with strident language in briefs to the Supreme Court on state-church cases.
One such case involved the Santa Fe Independent School District in Texas. In the 1990s, the district organized prayer at school events, such as football games and graduations. A Catholic and Mormon family in the district challenged these prayers and the case was litigated for nearly a decade, eventually reaching the Supreme Court in 2000.
Along the way, the school district contorted itself to salvage the prayers that courts kept striking down. Eventually, it landed on a policy of letting students vote on whether or not to have a “brief invocation and/or message to be delivered during the pre-game ceremonies.”
But as everyone involved in the case knew, this policy was all about keeping children in the public schools exposed to a particular religion.
On behalf of then-Rep. Steve Largent (R-OK) and J.C. Watts, both former professional football players, Kavanaugh wrote an amicus brief defending the use of the machinery of the state to impose prayers on students.
Read the full story at ThinkProgress