On day two of the confirmation hearings for Judge Brett M. Kavanaugh, President Trump’s second nominee to the Supreme Court, Senator John Cornyn of Texas brought up the 2000 case Santa Fe Independent School District v. Doe, in which the court ruled that sectarian prayers at high school football games violated the clause of the First Amendment that prohibits the establishment of religion.
Mr. Cornyn repeated Chief Justice William H. Rehnquist’s complaint that the decision “bristle[d] with hostility to all things religious in public life.” In fact, the plaintiffs in the case identified as Catholic and Mormon, and it is safe to say that they were not hostile to religion, but to the presumption that one religion speaks for all.
Judge Kavanaugh, eager to signal his agreement with Mr. Cornyn, tossed back the catch phrase that Mr. Cornyn appeared to be fishing for: “religious liberty.”
Over the course of this week’s Senate confirmation hearings, the other senator from Texas, Ted Cruz, repeatedly identified Judge Kavanaugh as a jurist who would uphold “religious liberty.” That should concern anyone who cares about actual freedom, religious and otherwise. What senators Cornyn, Cruz and other religious conservatives mean by “religious liberty” is its opposite.
If the Senate confirms Brett Kavanaugh, it will be declaring that the United States is a nation in which one brand of religion enjoys a place of privilege; that we are a nation of laws — except in cases where the law offends those who subscribe to our preferred religion; and that we recognize the dignity of all people unless they belong to specific groups our national religion views with disapproval.
When a pharmacist refuses to fill a prescription on the basis of his own religious beliefs, according to today’s Christian nationalists, that is a shining example of “religious liberty.” It is not. When a Catholic hospital delays or refuses to perform a legal and medically indicated procedure on a woman suffering a miscarriage on the grounds that the procedure violates its religious directives, that isn’t religious liberty. When a private school that miseducates students with scientifically illiterate and historically inaccurate theories claims a public subsidy, or a Medicare-supported retirement home turns away a lesbian couple, that isn’t religious liberty, either.
Let’s call it by its true name: religious privilege, not religious liberty. Today’s Christian nationalists want the ability to override the law where it conflicts with their religious beliefs, and thus to withdraw from the social contract that binds the rest of us together as a nation.
Sept. 7, 2018
This kind of religious privilege has a history. In the Jim Crow south, for example, when black doctors and black patients were routinely shunted to inferior hospitals, many people justified the practice in terms of their sincerely held “biblical” belief that God intended for the races to be forever separated.
Religious privilege of this sort was never intended for all belief systems, but rather for one type of religion. Sure, its advocates will on occasion rope in representatives of non-Christian faiths to lend the illusion of principle to their cause. But the real aim and effect of the religious liberty movement is to advance their idea of religion at the expense of everyone else.
If your religion or deeply held moral beliefs include the view that all people should be treated with equal dignity, then this religious liberty won’t do anything for you. If you’re a taxpayer who helps to fund your local hospital, a patient who keeps it in business, or a professional who works there, then your sincerely held religious and moral conviction that all people are entitled to equal access to the best medicine that science can provide and the law permits won’t stand a chance against a Catholic bishop’s conviction that some procedures are forbidden by a higher authority.
Today’s Christian nationalists will insist they are the only victims here. But that is as false as it is lacking in compassion. The terribly real effect of the kind of religious supremacy they seek is to target specific groups of people as legitimate objects of contempt. L.G.B.T. Americans, women and members of non-favored religions may be able to get the services they need from some other pharmacist or cake decorator or retirement home or emergency room — at least we have to hope so. But what they won’t get back is the equal dignity to which they are entitled — and that’s the point.
President Trump, as part of his kickback to the white evangelicals who got him elected, has fashioned this idea of religious supremacy into a cornerstone of his shambolic administration. In January 2018, the Department of Health and Human Services set up an office designed to make it easier for health care professionals to deprive their clients of medical services, including birth control and other forms of reproductive care, on the basis of religious belief. In July, Attorney General Jeff Sessions followed up with his own Religious Liberty Task Force. Already the Department of Labor is assuring federal contractors that it’s all right to violate anti-discrimination law as long as they can claim they did it on account of an implicitly defined set of religious or deeply held moral beliefs.
All of these detestable initiatives, however, are really just a preview of the damage Brett Kavanaugh would be able to deliver from the Supreme Court.
To understand the significance of Judge Kavanaugh’s nomination, you have to know something about how he got to this crowning point in his career. Judge Kavanaugh comes from a hothouse carefully tended by the ideologues of the Federalist Society and given the stamp of approval by Mr. Trump’s court evangelicals and conservative Catholics. Having lost the so-called culture war on women’s and L.G.B.T. rights among the general public, Christian nationalists understand that the only way for their regressive views to dominate is if they control the courts.
The confirmation process brought to you by today’s Republican Party only serves to confirm the antidemocratic nature of Judge Kavanaugh’s appointment. Republicans defaulted on their Constitutional obligation to advise and consent on the nomination of Judge Merrick Garland. But now they are aiming to push Judge Kavanaugh’s through without anything close to a full revelation of his documentary trail.
The part of the trail that is visible confirms that Judge Kavanaugh’s theoconservative backers have chosen a candidate who will advance their agenda. There was a time when Thomas Jefferson’s “wall of separation between church and state” was part of the furniture of American constitutional thought. Only a grumbling minority talked about tearing it down. But in a recent speech, Judge Kavanaugh seized on a dissenting opinion in which his judicial hero, Justice Rehnquist, argued that the wall metaphor was “based on bad history” and “useless as a guide to judging.”
In his dissenting opinion in Priests for Life v. Health and Human Services, Judge Kavanaugh argued that requiring an organization to fill out a one-page form that would have exempted it from providing contraception coverage imposed a “substantial burden” on its free exercise of religion. He appears to feel keenly the anguish of priests and nuns living in a nation where women have a range of lawfully and medically supported health care options.
But in Garza v. Hargan, he thought it was no real burden for a minor, pregnant and in federal custody, to be denied access to the abortion she desperately wanted in order for the government to search for a sponsor, rather than arrange for her medical treatment directly.
In that same decision — thankfully slapped down by the full bench of the court on which he sat — Judge Kavanaugh characterized abortion as a “momentous life decision” and referred contemptuously to abortion rights as “abortion on demand.” That is precisely how “religious liberty” works today. You maximize the moral anguish of those whose religion and values you favor and minimize the rights and suffering of those you disfavor.
Judge Kavanaugh’s performance in his confirmation hearings served only to amplify these concerns. In answer to Mr. Cruz’s invitation to discuss “religious liberty,” Judge Kavanaugh spoke movingly about the suffering of those who were prevented from bringing their religion into “the public square.” But he had next to nothing to say about the benefits that have flowed to all of us from the many landmark decisions that have prevented religious groups from using the power of the state to impose their views. He endorsed the appeal to “history and tradition” in justifying the mixing of religion and government functions, but showed no awareness that such appeals invariably confer privilege on those religions best able to claim this history for themselves. He celebrated recent rulings that establish the right of religious groups to participate in “public programs,” but failed to note that the concerns those rulings raise have to do with the use of taxpayer funds by religious groups whose beliefs are not universally shared — and whose discriminatory practices are at odds with laws that apply to the rest of the nonprofit (and for-profit) world.
In response to Mr. Cornyn, Judge Kavanaugh gave favorable mention to the Supreme Court decision in the Good News Club v. Milford Central School case. At one time, public elementary schools largely excluded these clubs in response to Establishment Clause concerns. The Good News decision required the schools to open their doors to evangelical clubs, which gives young children the false but unavoidable impression that their school endorses one religion above all others.
For Judge Kavanaugh, who wrote an amicus brief in the case while in private practice, this was a victory for religious liberty, presumably available to all other religions. But in the real world, few other religious groups have thought it appropriate to emulate the Good News Club’s strategy in going after other people’s elementary-age children in their public schools. And those who have tested identical strategies — the Satanic Temple tried it in 2016 — have effectively had the school doors slammed in their faces.
Judge Kavanaugh’s disdain for the separation of church and state will matter in decisions that go well beyond the usual battlegrounds in the culture war. He has expressed enthusiastic support for school voucher programs, for example, which are ways of pretending to reform education while funneling money from the public purse to religious organizations.
Judge Kavanaugh’s record shows he also has a special place in his heart for the mystical belief systems of corporations. He endorsed the Hobby Lobby decision, which allowed that corporation to use its religious beliefs to deny birth control coverage to its employees.
There is another vision of America, one where we come together as a people to solve as many of the problems that we face as we can. In an America that must still exist somewhere in our collective imagination, no group of individuals is singled out to be stripped of their dignity. In this America, we treat everybody equally under the law and we expect everyone to follow it. Citizens are free to exercise their religion, but not to impose it on other people or to fund it at public expense. The choice before the Senate is whether we continue to advance this vision of an open and tolerant America or stamp this low moment in our political history on the highest court of the land.
Katherine Stewart (@kathsstewart) is the author of “The Good News Club: The Christian Right’s Stealth Assault on America’s Children.”