“This program has all the hallmarks of a school choice program, because it’s a financial-aid program designed to benefit students,” said Michael Bindas, senior attorney for the Institute for Justice. “It operates on private choice just the way school programs do. It’s about the fundamental principle that government has to be neutral, not hostile, toward religion.”
Judge Kavanaugh’s record suggests he believes the separation of church and state has been applied too liberally in public school settings.
In a 1999 school prayer amicus brief, he argued in favor of a high school in Santa Fe, Texas, allowing students to lead an invocation, even if it included God, before varsity football games.
“If the student speaker must avoid ‘prayer,’ as respondents demand, does that mean all references to God?” he wrote. “What about references to the ‘Father’? The ‘Father above’? Must the student avoid a reference to ‘our Creator’? Can the student ask the crowd to observe a moment of silence for the crowd ‘to pray’ as they wish?”
The Supreme Court ruled the prayers unconstitutional, with Justice Kennedy in the majority.
In another case, Judge Kavanaugh and Justice Kennedy came down on the same side when the Supreme Court ruled that a New York school district could not prohibit a Christian group, the Good News Club, from using its facilities.
In a 2000 amicus brief, Judge Kavanaugh argued that the school district’s policy was discriminatory and would force religious people to “water down their beliefs and hide the religiosity of their message in order to satisfy a government administrator.”
Supporters of a strict division between church and state say Judge Kavanaugh and Justice Kennedy do hold profoundly different views and that Judge Kavanaugh’s confirmation would reshape public education.
“Justice Kennedy was very protective of schoolchildren, and believed that failing to shield them from religious coercion was an attack on their rights,” said Rachel Laser, executive director of Americans United for Separation of Church and State, which compiled a report on Mr. Kavanaugh’s record on church and state issues. “Judge Kavanaugh believes that shielding children from religious coercion is an attack on religion.”