Senate Panel Should Question Kagan On Church-State Views

Watchdog Group Expresses Concern About Kagan’s Record On Religious Liberty And Civil Rights, As Well As Funding Of Religion

Americans United for Separation of Church and State today urged the Senate Judiciary Committee to question Supreme Court nominee Elena Kagan about her views on crucial religious liberty issues.

In a letter to Committee Chairman Sen. Patrick Leahy and ranking minority member Sen. Jeff Sessions, Americans United asked senators to question Kagan about specific records stemming from her service in the Clinton administration and her testimony to the Senate during her confirmation hearing as solicitor general.

Kagan, AU insisted, should be asked whether religious liberty claims outweigh civil rights protections and under what circumstances government can fund religious groups.

The Rev. Barry W. Lynn, Americans United executive director, said he hopes the committee accepts its responsibility to question Kagan on her church-state perspective.

“It is imperative,” said Lynn, “that senators ask Kagan about her stance on religious liberty. We have carefully researched her record, and there are issues that raise concern. I think she should have the opportunity to clarify exactly what her views are.

“Religious liberty should not be used as a sword to override civil rights laws that protect all Americans,” Lynn continued, “and the government should not use taxpayer dollars to fund religion. That’s what the Constitution mandates, and I hope Kagan shares that perspective.”

Confirmation hearings for Kagan are scheduled to begin on Monday.

AU pointed to specific incidents from Kagan’s record:

  • In August 1996, while working for the White House, Kagan expressed dismay about a California Supreme Court decision that required a landlord to rent an apartment to an unmarried couple – in accordance with California civil rights law – in spite of the landlord’s religious objections. Kagan said the court’s decision to say that the civil rights law did not substantially burden the landlord’s religion was “quite outrageous” and encouraged administration intervention.
  • In May 1999, Kagan advised Vice President Al Gore’s staff not to mention the Religious Freedom Restoration Act in a speech, because this law and a follow-on bill in Congress had sparked conflict between religious liberty advocates and the LGBT community. Kagan said she was the “biggest fan of [the measure] in the building” but insisted that mention of the bill could cause political problems and explained that the White House was trying to seek some kind of agreement between the communities.
  • In 1995, Congress passed a major welfare reform bill that included “charitable choice” provisions inviting religious groups to offer publicly funded social services with fewer constitutional and civil rights safeguards. The Department of Justice wanted to add a provision barring funding of “pervasively sectarian” organizations as part of a technical corrections package. Kagan wrote in a memo that the Justice proposal didn’t make it into the package and the Department of Health and Human Services “isn’t arguing. Neither am I.”
  • In 1997, Kagan commented on a Clinton proposal to subsidize volunteers working with religious groups. In her memo, she acknowledged that the legislation could at “the very least” include partnerships with programs that are not pervasively sectarian, but that she would like to find legislative language that “stretches the envelope still further.”
  • As a clerk for Supreme Court Justice Thurgood Marshall in 1987, Kagan wrote a memo about government funding for religious groups to offer instruction about adolescent sexuality and pregnancy. She asserted that “when the government funding is to be used for projects so close to the central concerns of religion, all religious organizations should be off limits.” Yet when asked about that memorandum during the 2009 Senate Judiciary Committee hearing on her nomination to be solicitor general of the United States, Kagan described the rationale in her memorandum as “the dumbest thing I’ve ever read.” She later said the memo was “deeply mistaken” and “utterly wrong.” She noted, however, that “the use of a grant in a particular way by a particular religious organization might constitute a violation” if the funds were used to fund “specifically religious activity.”

Concluded AU’s Lynn, “Kagan may simply have been carrying out what she perceived to be the policy of the administrations she worked for. These may not have been her personal opinions. One way or the other, however, we need to know what her church-state philosophy is.”

Americans United is a religious liberty watchdog group based in Washington, D.C. Founded in 1947, the organization educates Americans about the importance of church-state separation in safeguarding religious freedom.