Thread by @sarahposner

1. Here's a little thread about the piece I wrote last night for the Post about Kavanaugh's testimony on religious liberty issues. You can read it here:

washingtonpost.com/news/acts-of-f…

2. For years, conservatives have been aiming at eroding the separation of church and state in a variety of ways: by claiming it's a "myth," by seeking to overturn SCOTUS precedent on it, by flouting it when they are in power.

3. The interplay between the First Amendment's religion clauses (the Establishment Clause and Free Exercise Clause) is delicate, as Kavanaugh indicated to (I think?) Ted Cruz yesterday.

4. However, Kavanaugh's own views on this were unmistakable: he believes the court has gone too far in finding violations of the Establishment Clause (see his lament about the decision in Santa Fe School District--read my piece if you missed that washingtonpost.com/news/acts-of-f…)

5. and praised the court's application of freedom of religion in opposition to Establishment Clause claims, *particularly* application of legal theories that government action is *discriminatory* against religious actors (see his commentary on the Good News Club case).

6. Kavanaugh clearly thinks the court's Establishment Clause jurisprudence has been overzealous, and that subsequent cases finding that government action viz. religious actors discriminated against them or violated their Free Exercise rights were correctly decided.

7. Remember, conservatives' longtime aim is to portray the separation of church and state as a "myth," Supreme Court jurisprudence on it (say, the cases striking down mandatory school prayer) as "judicial activism."

8. They want to make it harder for a plaintiff to prove an Establishment Clause violation, and they've had a lot of success at that.

Kavanaugh could give them more success.

9. What does this mean in everyday laymen's terms? What sorts of cases could come before the court? Cases involving:

Religion in public schools;
Publicly-financed religious NGOs;
Govt-approved religious requirements in govt contracts and grants.

For example.

10. The mirror image, if you will, of all that is Kavanaugh's robust defenses of religious liberty and conscience protections. As I outline in the piece, it seems he's extremely sympathetic to ideas undergirding the Trump administration's radical shifts in policy on this front.

11. So, for example, what is DOJ's Religious Liberty Task Force going to do? Will it say a religious objector doesn't have to comply with laws or regulations relating to LGBTQ rights? Could a challenge to that reach the high court? Sure.

12. What do we know about how Kavanaugh thinks about those kinds of issues? We know that when @SenKamalaHarris asked him whether he thought that Obergefell was correctly decided, he didn't answer and pivoted to Masterpiece Cakeshop.

13. Masterpiece Cakeshop was a case the court decided on *Free Exercise* grounds, determining that the baker who refused service to a gay couple and had a complaint against him at a state civil rights commission had experienced hostility to his religion.

14. At HHS, the Office of Civil Rights has created a Conscience and Religious Freedom Division. It wants to expand conscience exemptions for people who oppose abortion, and even could try to deprive states of federal funding on these grounds. huffingtonpost.com/entry/gallant-…

15. When Kavanaugh talks about religious liberty, these are the issues he's talking about. That he frames all of them as religious liberty issues, and believes he's defending religious people from discrimination by the government, is very telling about his views.

16. As I wrote in my piece, this is exactly what Trump's base wants to hear.

/fin

washingtonpost.com/news/acts-of-f…