Author: Ophelia Benson

Justice John Paul Stevens has been a historic champion of our constitutional separation of church and state. He has consistently sought to strike down special privileges for religion and its impositions on the rights of others. President Obama’s choice to replace him, Solicitor General Elena Kagan, does not appear to embrace the fundamental American principle of church-state separation with the vigor and force of Justice John Paul Stevens. This conclusion is based on the evidence that has come to light since her nomination to the United States Supreme Court.

Indeed, in at least one instance, Ms. Kagan appears to directly rebuff the church-state jurisprudence of Justice Stevens.

Thus, Secular Coalition for America opposes Ms. Kagan’s nomination until she makes her support for church-state separation much more clear and emphatic. Five instances raise grave concern that Ms. Kagan does not share the judicial philosophy of Justice Stevens:

1) As an attorney for the Clinton White House in 1996, Ms. Kagan advocated that the administration intervene in a case in which the California Supreme Court ruled that a landlord could not discriminate against prospective tenants-an unmarried couple-because her religion condemned sex out of wedlock. The California court ruled that it is not a “substantial burden” for those who choose to enter the marketplace to treat customers equally. Ms. Kagan argued that the court’s ruling was “quite outrageous.” Kagan’s exact same reasoning would apply against gay couples who sleep together-and potentially to people of particular races (as many religions have historically condemned as inferior those of differing races or ethnicities).

Is Elena Kagan prejudiced? Of course not. But Ms. Kagan’s legal reasoning opens the door to dressing up prejudice against any number of groups as a “burden” on those who would impose their prejudice on others. The California Supreme Court ruled correctly that someone who elects to enter into the business market place is not “burdened” by a requirement of equal treatment.

2) In 1999, Congress attempted to pass the Religious Liberty Protection Act (RLPA). Had this law passed, applicants for employment or housing might have had no legal protection from being forced to answer religiously motivated questions concerning their marital status, sexual orientation, religious beliefs, or whether they are pregnant or HIV-positive. Ms. Kagan, disappointingly, described herself as “the biggest fan” in the Clinton White House of RLPA, and, though one would hope to find proof to the contrary, there is no evidence that Kagan expressed outrage at the thought of undermining the enforcement of state and local civil rights laws on the basis of religious bias.

3) During her Senate confirmation hearings for the office of Solicitor General, Ms. Kagan commented on a memo she authored while a clerk for Justice Thurgood Marshall pertaining to Bowen v. Kendrick which asserted that religious groups should not be able to receive public funding even for secular activities, as those funds would inevitably find their way to serving explicitly sectarian purposes. But Ms. Kagan told the Senate her reasoning in this memo had been “deeply mistaken” and “utterly wrong,” calling it, “the dumbest thing [she] had ever read.” Yet Kagan’s reasoning in the memo was entirely consistent with the reasoning in the Bowen dissent, supported by both Justice Marshall-and Justice John Paul Stevens.

4) When charitable choice provisions were initially inserted into Welfare Reform legislation in 1996, the Clinton Justice Department advocated that “charitable choice” organizations should not be pervasively religious, as would be required by sound constitutional principles. Ms. Kagan, while employed as White House Counsel, seems to have de-emphasized the Justice Department’s concern and may indeed have not supported the Department position. Regardless, this was another instance in which Ms. Kagan was not a strong, vocal and forceful advocate for separation of church and state in the spirit of Justice John Paul Stevens.

5) In notes from a speech given at Princeton University in 2003, Ms. Kagan seemed to imply that the courts could cede to Congress the power to have politicians decide how fundamental American rights could be interpreted in some important instances. If this is her opinion, this is an unsettling viewpoint that goes far beyond separation of church and state. But as to church-state issues, it might, in violation of long-standing jurisprudence, allow a political majority to interpret the constitutional rights of a minority. This seems inconsistent with the jurisprudence of Justice Stevens and raises serious questions regarding the liberties of every American, particularly Secular Americans. Perhaps Ms. Kagan can clarify her position, but the indications from her notes are a valid and significant concern.

It is possible that during her confirmation hearings, Ms. Kagan will expand upon her positions, and emerge a more acceptable nominee. But for now the evidence points in an unfavorable direction. The Secular Coalition for America has composed a series of questions addressed to members of the Senate Judiciary Committee that will hopefully clarify where Solicitor General Kagan stands on a series of church-state related issues which we strongly urge the committee to ask. These questions are available at www.secular.org/kaganquestions.

We urge those Senators to honor the true intent of our nation’s Founders and their belief in church-state separation, and to question Ms. Kagan carefully on these matters. Given what is currently known, the Secular Coalition for America respectfully asks that the Senate reject her nomination and that President Obama choose a nominee who will clearly stand up for church-state separation and against religious discrimination with the boldness and courage worthy of Justice John Paul Stevens.