“Absolutist,” “hostile,” “Orwellian,” “full extermination,” “cleanse public schools.” These are some of the words and phrases an attorney used to argue in favor of imposing Christian prayers on students at public high school football games in what would become a landmark 2000 Supreme Court case.
The attorney’s argument in the amicus brief culminated by invoking Nazis, arguing that if the court’s justices were to rule in favor of the families who didn’t want the government forcing Christian prayers on everyone, then Christians would be relegated “to bottom-of-the-barrel status in our society — below socialists and Nazis and Klan members and panhandlers and ideological and political advocacy groups of all stripes.” In other words, without a right to impose prayer on everyone, Christians are inferior.
The court disagreed with the attorney, ruling against him in Santa Fe Independent School District v. Doe. Now, 25 years later, the same attorney is in a unique position to help reverse that decision.
When he filed his brief in late 1999, Brett Kavanaugh was a partner at Kirkland & Ellis. In just a few days, the Supreme Court on which he currently sits will consider whether to accept a new case that asks the justices to overturn the 2000 precedent, in which Kavanaugh absurdly argued sought “the full extermination of private religious speech from the public schools.”
Will Kavanaugh recuse himself from any consideration of the new case, Cambridge Christian School v. Florida High School Athletic Association?
Justices recusing themselves from cases is not particularly rare. Last term, Justice Amy Coney Barrett recused herself from a case involving Oklahoma’s approval of the nation’s first religious public school, which left the court in a 4-4 deadlock that let stand the Oklahoma Supreme Court’s decision blocking the school as a violation of the separation of church and state. Barrett recused without any formal explanation, but presumably because of her close relationship to some of the Notre Dame law professors who had helped push for the school and brought the case.
The standard for recusal for federal judges is written into federal law. They “shall . . . disqualify” themselves when “in private practice he served as lawyer in the matter in controversy.” Or, more broadly, a judge “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”
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There’s also the ethical code that binds these justices. Canon 3B of the Supreme Court Code of Conduct mirrors that law. Justices should recuse themselves when their “impartiality might reasonably be questioned, that is, where an unbiased and reasonable person who is aware of all relevant circumstances would doubt that the Justice could fairly discharge his or her duties.”
No fair reading of Kavanaugh’s amicus (or friend of the court) brief in the original case would leave anyone with much doubt as to which way he would rule in the new case seeking to overturn that original case.
The case the court is now considering whether to hear, Cambridge Christian School v. Florida High School Athletic Association, is simple. The Florida High School Athletic Association is a state body that helps run public high school athletics. Many private religious schools participate in public school leagues. In 2015, Cambridge Christian School’s football team made it to the playoffs, which are organized by the FHSAA. Cambridge Christian demanded the right to broadcast a prayer over the loudspeaker at the game. The FHSAA declined. A Christian nationalist legal outfit that specializes in dramatizing these cases into instances of Christian persecution, First Liberty Institute, got together with Cambridge Christian and sued.
At the Sept. 29th “long conference,” the justices will decide whether to take up First Liberty Institute’s challenge.
The problem First Liberty faces is that the law is clear — and clearly against it. Religious freedom does not include the right to demand a government microphone to broadcast your prayers to a captive audience, many of whom are present because of their public school obligations.
The precedent standing in First Liberty’s way is Santa Fe Independent School District v. Doe.
In the 1990s, the Santa Fe school district had a troubling history of pushing religion onto students, including staff advertising Baptist revival meetings, staff lecturing about the “cult-like nature of Mormonism and its general evils,” failing to stop anti-Semitic harassment, such as “Hitler missed one,” and allowing the distribution of Gideon Bibles in schools.
And, of course, prayer was ubiquitous at graduations, games, and more.
It came to a head when several families, including Catholic and Mormon families, challenged the prayers broadcast over the loudspeakers at the high school football games.
The chairman of the school board made it clear that “he would willingly face a lawsuit and even go to jail to keep prayer in the schools.”
The case was about using the machinery of the state to impose Christianity on other people’s children. It’s the argument Brett Kavanaugh made, and the Supreme Court in 2000 wasn’t having it.
The justices were unmoved by the idea that the students voted on the prayer. “Fundamental rights may not be submitted to vote; they depend on the outcome of no elections,” wrote the majority in 2000, quoting a famous 1943 opinion which held that students cannot be forced to say the Pledge of Allegiance against their religion.
The court ruled 6-3 that prayers before public high school football games, even when voted on by students and given by a student-elected chaplain, are unconstitutional.
First Liberty is not shying away from their goal of overturning this 25-year-old precedent, which protects the religious freedom of every family in this county. This is precisely what they’re asking: Cambridge Christian School’s “case should be used to cabin or overrule [Santa Fe’s] troublesome reasoning.”
The group and Cambridge Christian School want to relitigate a case that Kavanaugh lost. The future Supreme Court justice didn’t just make an argument, he argued with vitriol and venom and painted anyone who disagreed with his take as a “hostile” “absolutist” and extremist out to “cleanse public schools” and relegate American Christians to a second class status. Never mind that the Mormon and Catholic families bringing the case were American Christians and were doing so to protect their religious freedom.
Kavanaugh’s impartiality is reasonably in doubt as the court decides whether to take up the case and rule again on the constitutionality of prayer in public schools. And that’s why he must recuse.
Andrew L. Seidel is a constitutional attorney, author of several books on Christian nationalism and religious freedom, and host of the One Nation, Indivisible podcast, which first broke the story of this conflict of interest.
From Rolling Stone US
