Gaius Publius: What to Expect from a Kavanaugh Court – Government-Funded “Religious” Education

Yves here. I have a minor quibble with this otherwise fine piece on the danger posed by Brett Kavanaugh as Supreme Court justice. Even though losing Roe v. Wade would be a bad development, it is not as radical a change as most people believe. Access to abortions is more restricted than most people in blue cities recognize. From the Independent:

States such as Mississippi, North Dakota, South Dakota, West Virginia and Wyoming each only have one licensed abortion clinic and in Kentucky, the state is threatening to close its only one, due to apparent deficiencies in its licensing paperwork. Other states have instituted enforced counselling for women and waiting periods from anything from 24 hours to 3 days, as well as mandatory ultrasound scans before an abortion. Many states also deny health insurance coverage for abortion.

Having abortions be legal but not paid for was Nixon’s idea for limiting abortion rights.

And I also fault the so-called women’s liberation movement for being in this place. Rather than get the right to abortions enshrined in legislation, as it is in ever other major advanced economy, the early feminists invested a great deal of energy in trying to pass an Equal Rights Amendment rather than nailing down women’s rights on key issue, issue by issue, when they had the wind to their backs.

By , a professional writer living on the West Coast of the United States and frequent contributor to DownWithTyranny, digby, Truthout, and Cfdtrade. Follow him on Twitter , and . GP article archive . Originally published at

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There are not enough philanthropic dollars in America to fund what is currently the need in education…Our desire is to confront the culture in ways that will continue to advance God’s kingdom.

—Education Secretary

This begins a short series detailing the radical changes to the way our government operates — if you will — that will be force on the nation by an unelected Supreme Court containing Brett Kavanaugh as the final piece of a 5-4 radical majority.

The list of these is long and frightening. They include:

  • Reversal of Roe v. Wade, freeing states to
  • Presidential , further establishing the “imperial presidency” so feared by the founders
  • Destruction of remaining , freeing government even more in matters of surveillance, search and seizure, while at the same time…
  • Expanding First Amendment protection to
  • Assault on efforts to
  • Assault on government , including…
  • Constitutional assault on the , on the right of the Executive Branch to regulate commerce at all
  • Assault on freedom from discrimination based on , but…
  • Expanded for discrimination
  • Even greater assault on , worker protection and consumer protection
  • Reintroduction of Jim Crow-style
  • Court-confirmed (it violates the First Amendment rights of ISPs)

And finally:

  • Conversion of the country, to the greatest extent Court rulings make possible, into Charles Koch’s ideal libertarian paradise

That’s a hefty, scary list, especially the last, which will not be difficult at all to document. For a hint at what the “Koch network” (author Nancy MacLean’s ) has planned for America, consider just some of the they want to pass at the Constitutional Convention they’re .

Some items on the list above may look small and “manageable,” but others are too huge even to contemplate. Striking down Roe v. Wade will turn all states but the most liberal into virtual back alley abortion dens, a horrifying, deadly thought. I’ve dealt with the in a preliminary way and will have more on it later. But needless to say, striking down the general right of the Executive Branch to regulate commerce at all will reverse the New Deal almost in its entirety.

Consider the nation which those changes will create; then consider the nation’s response, once the voters, all of them, realize how much has been lost, been given away, never to be gotten back.

So let’s look briefly, one at a time, at these aspects of a “Kavanaugh Court” — a 5-4 radical right-wing-majority Court — starting with religion and religious education, which are intertwined.

The Kavanaugh Court on Religious Education

When Kavanaugh is confirmed and seated, brace yourselves. Get ready for a series of 5-4 rulings that enshrine giving government money to religious schools, especially those espousing virulent forms of what is inaccurately called “fundamentalism.” Betsy DeVos’ stiffled dream, in other words, will be fulfilled from the bench.

For a taste of how that would work, consider from the New York Times:

Kavanaugh Could Unlock Funding for Religious Education, School Voucher Advocates Say

Judge Brett M. Kavanaugh, in a speech last year, gave a strong hint at his views on taxpayer support for religious schools when he praised his “first judicial hero,” Justice William Rehnquist, for determining that the strict wall between church and state “was wrong as a matter of law and history.”

Mr. Rehnquist’s legacy on religious issues was most profound in “ensuring that religious schools and religious institutions could participate as equals in society and in state benefits programs,” Judge Kavanaugh, President Trump’s nominee to succeed Justice Anthony M. Kennedy on the Supreme Court, , a conservative research organization.

Words like that from a Supreme Court nominee are breathing new life into the debate over public funding for sectarian education. Educators see him as crucial to answering a question left by Justice Kennedy after the Supreme Court ruled it unconstitutional for the state of Missouri to exclude a church-based preschool from competing for public funding to upgrade its playground: Can a church-school playground pave the way for taxpayer funding to flow to private and parochial schools for almost any purpose?

The answer to the last question is yes.

The purpose of that flow of funds would not be to ensure that a broad spectrum of religious ideas get funded — imagine the response from conservatives, for example, if a large group of Muslim madrassas were funded by the U.S. government or one of the states. That response would be like the response from whites if a large group of blacks in, say, Alabama exercised their Scalia-minted Second Amendment rights and took open-carry to the streets.

The purpose of that new funding would be to “save the nation” by creating an army of politically active fundamentalist true believers.

“Confront the culture to advance God’s Kingdom”

Voucher programs like the ones conservatives advocate exist to give government money to schools at the intersection of “libertarian” ideology and fundamentalist religious beliefs — schools like those that Dept. of Education secretary Betsy DeVos would like use tax dollars to finance.

The Times again:

Scott Sargrad, the managing director of primary and secondary education policy at the liberal Center for American Progress, while Education Secretary Betsy DeVos’s school voucher agenda has not gained traction, “if confirmed, Kavanaugh may be the solution to her problems.”

“It is not a stretch to imagine a series of 5-to-4 decisions that slowly decimate public education in favor of voucher schemes,” Mr. Sargrad wrote.

Ms. DeVos has been among the most vocal critics of the legal prohibitions on parochial school vouchers. In a speech to leaders of religious schools this year, she called the prohibitions — born out of anti-Catholicism — “the last acceptable prejudice” that “should be assigned to the ash heap of history.”

Ms. DeVos has stalled in her efforts to create a $1 billion school voucher program, but after the Trinity decision, she has regulations that exclude religious colleges from participating in federal aid programs.

Here’s Ms. DeVos belief about the : “There are not enough philanthropic dollars in America to fund what is currently the need in education…Our desire is to confront the culture in ways that will continue to advance God’s kingdom.”

DeVos wants to devote government dollars to that mission. And that’s the mission a Kavanaugh Court will enshrine into law. Just one of many reasons confirming Brett Kavanaugh to the Supreme Court would be a generational disaster for a nation already in crisis.

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34 comments

  1. Amfortas the Hippie

    anyone want to lay odds on how many Dems vote to confirm this guy?
    for eleventh-dimensional pragmatist(sic) concerns?

    Reply
    1. lyman alpha blob

      Exactly as many as needed to confirm the guy but not a single vote more! The DNC has probably already assigned the votes.

      Reply
    2. pretzelattack

      hey just tell the democrats that putin specifically asked for him. they will believe that; even if they don’t they have to pretend to–we’ll finally get to see the fytin dinos of lore. #resistance.

      Reply
  2. Darius

    Democrats always begin and end the Supreme Court discussion at Roe v. Wade. They must be fine with overturning Social Security, Medicare, the Clean Air Act, and every good thing that Koch-Kavanaugh Kabal wants to destroy.

    Reply
    1. DHG

      The Anglo American world power will be functioning at the time of its demise at the hand of Gods Kingdom o Donald Trump nor any other person will become dictator in the US as this would immediately change the functioning status of this world power. All that is now necessary to begin the “Great Tribulation” is for the UN to order the destruction of religion that will be carried out by all the worlds rulers. It will come like a thief in the night on a day that no one expects it and this wicked system of things will forever be cast into everlasting destruction with the meek inheriting the Earth to time indefinite. It will not include any world leader or any one adhering to this system of things for they too will be cast into the everlasting symbolic lake of fire (in laymens terms be destroyed forever).

      Reply
  3. ambrit

    Except for a brief shining moment, the Supreme Court has always been a bastion of privilege and conservatism. The Kavanaugh appointment will just be a return to the historical norm.
    That stated, another historical norm not seen for a few decades now is political violence contra to the Status Quo Elite. Expect to see much more of that as people have the reality of social reactionism increasingly thrust in their faces.
    Take abortion; the “fundamentalist” cadres have generally embraced a full range of tactics to try and stop abortion, including murder and mayhem. Again, expect that ethos to be picked up on and amplified by the “left.”
    Back in the period of 1890 to 1915 or so, leftists, especially labour organizers, used bombing campaigns to ‘enforce’ their demands on the owners. Do not think that the majority of labour organizers resorted to violence because they thought it would be ‘fun.’ They did so because the owners refused to give an inch, and organized themselves to fund and run anti worker propaganda campaigns. Whenever the propaganda failed, violence was resorted to by the owners. The Pinkerton Detective Agency began as a private spy agency for Lincoln during the Civil War and developed into the striking arm of the Status Quo Elite.
    Demands we take for granted today, like the forty hour work week, overtime, safety rules, and other social benefits helping workers were ‘radical’ demands a hundred or so years ago. Do not assume that history is unidirectional. ‘Things’ can, and will, get a lot worse for the average person in this society.

    Reply
    1. Amfortas the Hippie

      agree. But it won’t be a replay of that period.
      1. the state/corpse apparatus of oppression and repression is much more sophisticated, today(like Clarke’s Third Law sophisticated)…which is the invisible fence portion of the ongoing Enclosures, imo.
      2. the People, themselves, no longer really have the language, or the things that language denotes and connotes, regarding worker rights, solidarity, being able to counter the Bosses, and internalising one’s Right to do so….at least in my encounters and observations, in real life and online.
      My life in food service industry Texas is my main anecdotal evidence in this assertion…talking on the line with my fellows…the neoliberal order’s insistence on hyperindividualism/human as Enterprise, filtered down there a long time ago…long before I had words for it.
      If the People…or a sufficient critical mass of them…do manage to get their sh^& together, the Machine has everything it needs to effectively counter any relatively peaceful change that threatens to result, making, a la JFK, violence the only alternative to submission.
      …and this isn’t even considering entitled suburban right wingers who will immediately side with the Machine when the servant class goes on strike.
      I expect ugly.

      Reply
      1. ambrit

        I expect ugly too.
        The ‘bomb throwing class’ has always been small. For political and propaganda reasons, the ‘leaders’ of the ‘left’ usually denounce any violence arising on the left. In this regard, the true ‘bomb thrower’ cadres fill the role of Vanguard of the Precariat.
        The growth of the Security State in America is a cure looking for a disease. Overreaction is built in to the design.
        So far, the ‘masses’ have been quiescent because, I think, not too many people have gone hungry or homeless in the middle classes. that condition is changing as we watch. There must be a critical mass or threshold where the last transgression sets something off.

        Reply
        1. Amfortas the Hippie

          “Vanguard of the Precariat.”
          Toynbee’s yelling in my ear, at that. “Internal Proletariat”.
          One might think of the various prison gangs, or even south side La 30 years ago, for that role…albeit unrecognised, even now.
          But even they have IPhones, and aspire to moar bling, generally.
          Been binging “black Sails” on hulu for a few weeks…with all this sort of thing in mind.
          Pirate Republic is different than Galt’s Gulch…but even they had their pet pirate, to muck up the works and steal bread.
          The same sort of thing happened with Rome…people got together, recognised that there wasn’t any law, really, any more…and acted accordingly.
          Like some low class invisible hand…contributing to a revolution, by slinging hash, or stealing tv’s.
          My domicile is pretty far out…but I worry sometimes if it’s far enough.

          Reply
          1. ambrit

            It’s all about your circle of friends and neighbours.
            We live in an older, slowly decaying inner suburb of a ‘one horse town.’ We now hear gunfire in the distance nearly every third night. That is a canary in our coal mine.
            As for the exurbs, or really, rural areas, I think of the film “Straw Dogs.”
            There will be a modern version of “The Decameron.” Maybe written on Mars, or on an L-5 colony.

            Reply
    2. Ginavon

      Yup….and And the trend now is loss of home ownership. More people are renting since the 2008 crash. The fed reserve has been artificially propping up the economy in numerous ways and we are about to see another crash in the economy way larger than the last one. Ask anyone in the EU they will tell you….”What ever you do…do not let them take your guns…look what they are doing to us and we cannot do anything about it”

      Reply
  4. walter

    Kavanaugh should be asked by every senator does he believe the constitution insures a right to privacy. Every ruling since griswald vs Connecticut is based on the premise that there is a right to privacy under the constitution, so everything from the right to birth control to sodomy to gay rights and including abortion rights is based on the rights to privacy. The religious right does not just want to take away abortion rights they also do not believe in the right to birth control and that the constitution includes the right to privacy

    Reply
    1. George Stubbs

      I’ve been puzzled over the years that there isn’t more discussion of, or jurisprudence around, the 9th Amendment: “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” In other words, just because the Constitution doesn’t mention a right doesn’t mean you don’t have it. The right to privacy would seem to be embedded here, along with many other rights.

      I’m not a lawyer, but it seems to me, in what of read of/by Kavanaugh, Renquist, et al., that this cabal has no regard for this amendment and its implications.

      Reply
    2. Ginavon

      I am not for making abortion illegal but really….Abortion is a crude way to keep oneself from parenthood. There are so many other ways now that abortion should be a last resort. If we had a decent childcare system and better support for all the women that have been abandoned by their partners fewer women would want an abortion. Trying to guess what another human being might do in the future is like naming a product after a man who is still alive…..risky indeed. We need people who will take and apply the CONSTITUTION at face value. Those who want modern interpretations are sliding down a slippery hillside

      Reply
  5. The Rev Kev

    One of the most famous outcomes from the American Revolution was the concept of ‘No taxation without representation’. Maybe, just maybe, after reading how this joker might be sending federal funding to religious schools, there should be a new concept of ‘No federal funding without accountability’. Doesn’t matter if it applies to charter schools, religious schools, whatever! You take federal money then the government should be entitled to know just what you are spending the money on and even if there is any worth doing so. If applied across the board you could see where this might go. Maybe questions like – does the oil industries really need tens of billions of dollars of government subsidies? The nuclear industry? Big ag? Big pharma?

    Reply
    1. Ginavon

      I cannot believe people think this could even actually happen. Federal funding for religious schools falls under separation of religion and state. It is unconstitutional unless you are one of the hippy groovy people that likes to bend it to modern ideas

      Reply
  6. KYrocky

    It seems we are living variant of “The Pelican Brief” with the result being a Supreme Court controlled by the rich and powerful, and staffed specifically to serve the interests of the richest. The Conservatives are working from what they want the law to be, and then making up Constitutional fictions to support it. It has nothing to do with the actual Constitution.
    The Republican Party possesses no principle other than holding and wielding power to serve the rich.

    Reply
    1. Ginavon

      It is difficult to point the finger at any one party as they all seem to be splitting and/or morphing into something never seen before.

      Reply
  7. divadab

    Funding for religious schools opens a Pandora’s box of issues. For example, because of the Constitution’s prohibition of the establishment of religion, funding must be offered to ALL religions without discrimination. I wonder if Mrs. Devos realizes that if she is successful, federal funds will go to Islamic Madrasas equally as for bible schools?

    Canada, as part of the confederation deal in 1876, guarantees Catholics as well as Protestants their own school systems and the ability to tax their members. Jewish immigration in the late 1800’s led to that community’s demand to have their own school system. It was refused – and the community was made to choose between the Catholic and Protestant systems for their children. They chose the Protestant system, the reason given that it was better funded – Protestant school taxes were a quarter point higher than Catholic.

    We shall see if DeVos and Co are successful. If they are, it will be a wild ride. Not unprecedented, but because these people are so deliberately ignorant, it will all be new to them.

    Reply
    1. Plenue

      Dominionists always imagine that when they bring religion into government, it’s going to not only be just Christianity, but their specific approved brand of Christianity. You can derail them very easily by following their logic but including Islam.

      “So you’re okay with Salat prayers in schools, the Koran being taught, and Federal funding for Islamic education? Oh, what’s that, you’re not? Thought you wanted religion freedom?”

      Reply
      1. redleg

        Their goal isn’t religious freedom, it’s subjugation to that brand of religion. Therefore that question is not relevant- they have no intention of allowing other faiths to coexist if/when they achieve power.

        Reply
          1. JTMcPhee

            Keep telling yourself that. Pay no attention to all the people who are clearly NOT “subject to the rule of law.” Like members of Congress, the state security apparatus, the US MIC, the Banksters, supranational corporations and the rest.

            And remember that “the law,” to the extent that it is a meaningful category any more, is a rapidly morphing thing, that these days comes from the Congress (and smaller legislatures) in adopting legislation now usually drafted by lobbyists, and designed to exempt them and their clients from that ‘rule of law’ inconvenience, or to shackle the mopery to stuff like the “Affordable Care Act.” And then there’s the President, who titularly presides over the operation of the executive agencies who are ‘delegated” all that Commerce Clause and other national power by Congress in that legislation, and who has the power to ignore “the law,” and selectively prosecute it, or not bother. Antitrust legislation has been crapified but it is still on the books — but no enforcement, no “law.” And then of course there’s the Supremes, who even though they have no “agency” in terms of enforcing their diktats and encyclicals, get the last word (e.g., Roe v. Wade, but see Citizens United) on what “law” a “citizen” is “subject to…” And then the executive and the corporations go to work, effectuating that “law.”

            The Afghans, e.g., have simpler systems that, because they are smaller, may work “better” at dealing with consensus — where they are not disembodied by Imperial skulduggery, or of course captured or set aside by their own theokleptocrats. But of course, it is held that, as arrogantly and infamously observed by that blood-soaked Imperialist, Churchill, “democracy [note that he did not bother to define the term, because its meaning is “commonly known,” right?] is the worst form of government, except for all the others.” He himself had no respect for “the law,” except as a myth to keep the minions in line and assist in the looting…

            Not too hard to imagine a theocratic state, or the attempt at one, if you spend any time listening to the false prophets that fill the airwaves with their perverse renderings of the Bible, drawn mostly from carefully selected snippets from the Old Testament (laid down by rotten old Israelite authoritarians and polished by the Catholic scholars and schemers), and cramped readings of the silly aand slick pitches of that old salesman extraordinaire, Saul of Tarsus.

            “The law” is whatever a person or group with enough power to enforce his or her or their preferences says it is. And remember that legislation can be repealed as well as enacted, so we mopes no longer benefit in our political economy from stuff like Glass-Steagall.

            Reply
              1. JTMcPhee

                And people “obey,” most of us/them, only if there is a real fear of enforcement.

                In the subdivision where I live, there are several stop signs, 2-way and 4-way. There’s lots of pedestrians and bicyclists, and older people who drive with slow reflexes. There’s really good reasons for there to be stop signs and other traffic rules, because people get injured and die. Something that is fun is to view “road rage” videos in youtube, and those interesting peepholes into Russia (must include RussiaRussia, right?) via the dash cams that everyone seems to have:

                Once in a great while a cop in a less-marked car, wanting to fill up his ticket quota (of course there is no such thing, the police say), will park where he can see the principal 4-way intersection. And then people who are attentive and see the cop will come to a full stop at the stop sign line, and yield to pedestrians and bikes and even look left, right and left before proceeding. Way too many, busy on cell phones or running on habit, either blow the stop signs completely, or do a rolling ‘stop’ at 5 or 10 miles an hour. Cop gives tickets to a number, does not go after the ones that blow the stop even as he is ticketing another person, and then back to base.

                And Banksters? And the procurement looters at the Pentagram? And Gooble and Faceblot? They don’t even have to worry that there might be a cop at the stop sign, even once a year…

                Reply
  8. Wayne Gersen

    Arne Duncan would be happy to use school choice and charters turn “failing public schools” over to profiteers… and the hedge fund “reformers” who make up the donor base of the Democratic party would also be elated…

    Once the public is persuaded that their democratically elected school boards are incapable of controlling costs and providing a good education for their children and convinced that public schools are a commodity, why shouldn’t they be able to “vote with their vouchers” and make whatever choices they wish when they are choosing a school for their child?

    We are reaping what the “reformers” sowed…

    Reply
  9. Bobby Gladd

    Coming soon (in the Mike Pence Indiana SB101 model), right wing favored bigoted acts will be deemed 1st Amendment-protected “speech” (just as now money is “speech”). See the GOP’s recently reintroduced “FADA” bill ().

    Reply
  10. Unna

    Concerning the Roe problem: Much of it, concerns a woman’s access to services. Repealing Roe does not make abortion illegal in America. It would only permit stares to enact their own anti abortion laws making it illegal in that particular state, and as mentioned, many states have already made abortion as a practical matter unavailable. A lot of this comes down to money. A wealthy family can always fly their 15 year old daughter to France or NY. Drive from Idaho to California. For many people it’s just about money.

    So I have an idea. Why doesn’t Hillary, Oprah, their friends in Hollywood and Silicone Valley and so on, immediately declare the formation of a charitable foundation to support “women’s health services” which would arrange for and facilitate travel and expenses for women wanting an abortion, both in states where abortion is still available but unaffordable, and from states where it may become illegal to states where it will remain legal? Costs of transportation, food and lodging, the procedure. I’m not suggesting this just in order to trash Hillary and people like her because I don’t expect them to ever take up such an offer, but as a real but limited solution to a social problem. Maybe they’ll surprise people.

    Hillary and Oprah could get together and publicly announce the foundation and put up say $30M from Hillary and $100M from Oprah. It’s not like they can’t afford it. They should be able to, with a little help from their friends, put together a billion or more rather quickly because the rest would be shammed into contributing. How about those “folks” in the Hamptons where Kamala’s been trolling for dollars? And importantly, it would also serve as a powerful political statement. Why even Obama could toss in maybe $5M. Just saying….

    Reply
  11. Ginavon

    I agree with you MONEY is the key. Has anyone ever discussed why a human being would want to destroy their own gene pool? Well not being able to FEED, cloth, and provide childcare for you child is usually on the top of the list. We are the only industrialized country that still has no highly organized childcare system in the world. Why is no one screaming about this?
    PICK YOUR BATTLES CAREFULLY

    Reply

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