Blog: 2 reports focus on Kagan’s religious-liberty views

Thursday, June 24, 2010

WASHINGTON — Two reports issued yesterday highlighted Supreme Court nominee Elena Kagan's views on the establishment clause and the free-exercise clause of the First Amendment, suggesting she may become an important — and different — voice in interpreting religious freedoms.

In one report, scholar Melissa Rogers suggests Kagan could “move the Court closer to reinvigorating the Free Exercise Clause and thus closer to providing additional protection for the peaceful practice of all faiths.”

Her study, issued by the Brookings Institution, notes that Justice John Paul Stevens, whom Kagan is set to replace, was an ally of Justice Antonin Scalia when it came to free-exercise matters. Both approved of generally applicable laws that burdened religious practices, as long as they weren't aimed at undermining those practices but rather at protecting some important public interest. Stevens joined Scalia's majority opinion in Employment Division v. Smith, the controversial 1990 decision involving sacramental peyote use that gave this “weak reading” of the free-exercise clause, as Rogers put it.

Analyzing some of Kagan's writings in recent documents released by the Clinton presidential library, Rogers suggests that Kagan may have different views on the issue, and her nomination “could mark the first time a critic of the 1990 Smith decision … replaces a supporter of that decision.” Rogers doubts that President Barack Obama picked Kagan for this reason, but added that, “given President Obama’s religious freedom commitments, this is one area where he would be likely to see a break with Stevens as a welcome change.”

Rogers notes a 1996 memo from Kagan in the White House counsel's office about a California court ruling that upheld application of a law barring housing discrimination against a religious landlord who refused to rent to an unmarried couple. Kagan called the California decision “quite outrageous” and urged an appeal, lest the ruling undermine the Religious Freedom Restoration Act, which was aimed at countering the 1990 Smith decision. Rogers acknowledges that Kagan might have been just advancing President Clinton's agenda on the issue, not her own view. But Rogers said the memo “points toward a deep understanding of some of the fundamentals of religious freedom.”

“After two decades in which there has essentially been a free-exercise standstill at the Court, the Kagan nomination could get things moving again,” Rogers concluded. Rogers is the director of Wake Forest University Divinity School’s Center for Religion and Public Affairs.

The other report issued yesterday views Kagan's ideas on the issue with alarm. Her memo on the California case “raises many questions,” according to Americans United for Separation of Church and State. Kagan also described herself as “the biggest fan” in the White House of RFRA and its successor, the Religious Liberties Protection Act. For Americans United executive director Barry Lynn, these views, if they are her own, raise concerns that she may slight civil rights protections in the name of protecting religious practices.

“For Americans United, maintaining civil rights protections in federally funded programs and in the private sector is absolutely critical,” Lynn wrote in a letter to the Senate Judiciary Committee, urging senators to ask Kagan about religious-liberty issues.

Americans United also questions Kagan's views on the establishment clause. Various Clinton-era memos suggest she did not support a legislative amendment that would have prevented “pervasively sectarian” organizations from receiving government funding for social services. She also urged “stretching the envelope” to support a proposal that would suspend student-loan interest accumulation while students performed community services with either secular or religious organizations.

Senators, Lynn said, “should determine whether Kagan is committed to the Establishment Clause principle that the government may not fund 'pervasively sectarian' organizations and that, as a Supreme Court justice, Kagan would not bargain away those core religious freedoms.”

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