Baptists have a long history of fighting for religious liberty and ensuring that the government neither inhibits nor advances our faith or the beliefs of anyone else. As we’ve seen through our history, when church and state become entangled, we lose our precious right to exercise our faith. It is because of this deeply held religious belief that I have grave concerns about President Donald Trump’s nominee for the Supreme Court, Brett Kavanaugh.
Roger Williams created the first Baptist church in America. His faith led him to call for a “wall of separation, between the garden of the church and the wilderness of the world,” and to found the colony of Rhode Island, where people of all faiths were welcome. The wall metaphor is still commonly used today to describe our Constitution’s guarantee of separation of church and state. The idea of that wall is central to ensuring religious freedom for every single one of us — believers and the nonreligious. The separation of church and state is actually good for both.
Contrast that with the views of Judge Kavanaugh. In a speech just last year he praised the late Chief Justice William Rehnquist for “persuasively criticiz[ing] the wall metaphor as ‘based on bad history’ and ‘useless as a guide to judging.’” He went on to say that “Rehnquist was central in changing the jurisprudence and convincing the court that the wall metaphor was wrong as a matter of law and history.”
But let’s be clear — this isn’t just rhetoric. As a judge and as an advocate, Kavanaugh has aggressively worked to dismantle the wall of separation. Take for example his stance on public school-sponsored prayer. As a private attorney he wrote a brief — at a reduced fee — that argued that the Constitution requires public schools to permit students to deliver prayers or religious speeches to a captive audience of other students at public-school events (so long as the speaking students are selected pursuant to a neutral policy). He further argued that practices like prayer should be permitted if they are “are deeply rooted in our history and tradition.”
When it comes to taxpayer money going to religious institutions, his position is troublesome as well. Writing in a brief, Kavanaugh argued that the government can fund religious organizations to the same extent it funds secular organizations, even if that money is being used to pay for religious activities. That goes against decades of jurisprudence that has kept government from directing tax dollars to support religion. I believe that we as individuals should have the right to decide how we support religious institutions, rather than public money being put toward things like religious schools.
Perhaps most troublesome is what appears to be his inclination to allow religion to be used to harm others. As an appeals court judge, he wrote a dissent in the case Priests for Life arguing that employers could use their stated religious beliefs to obstruct their employees’ access to contraception without regard to the religious beliefs of the employees. This is a terrible precedent that actually harms the historic principle of religious liberty for all. The justices may hear similar cases soon involving businesses that seek religious exemptions that would allow them to fire employees who do not live according to certain religious tenets, or refuse to sell goods to LGBTQ customers.
And this is just what we already know about Judge Kavanaugh. Because of a partisan move to block huge swaths of his records as a political operative, there may be further evidence of his antagonism to our constitutional guarantee of religious freedom. That notwithstanding, his known record is enough to disqualify him for a lifetime seat on our nation’s highest court.
I hope Sen. Claire McCaskill and other leaders who respect the proper separation of religion and government will deny his confirmation.
The Rev. Brian Kaylor, a Jefferson City Baptist minister with a Ph.D. in political communication, is the author of four books on religion, politics and communication.