Kagan & Religious Liberty

Posted on May 11, 2010 In Blog

Yesterday, President Obama nominated Solicitor General Elena Kagan for a seat on the U.S. Supreme Court.

As has been widely noted – in praise by some and in criticism by others – Kagan has a distinguished career in the law (Clinton White House counsel, Harvard Law dean, etc.), but has not served as a judge and thus does not have a record of opinions for senators and citizens to reviews to ascertain her views on critical issues.

But what Kagan does have for people to look at as a start is the record of her confirmation hearing to her current post of Solicitor General – and there we find one interesting nugget on the issue of greatest import to the Orthodox community that the Court deals with – religious liberty.

As reported in yesterday’s New York Times, when she served as a law clerk to Justice Thurgood Marshall, Kagan wrote a memo in the case of Bowen v. Kendrick, a precursor to the more recent debates over “faith-based initiatives.”

The case involved the federal “Adolescent Family Life Act” which allowed for the use of federal funds to do research into the subject of premarital adolescent sexuality. The funds were allowed to be given to religious organizations if they offered counseling services. The Act was challenged by a group of taxpayers who claimed that it violated the Establishment Clause. In a 5-4 decision, the Court allowed federal funds to be given to religious organizations offering counseling consistent with the purposes advocated in the AFLA. Justice Marshall was among the 4 dissenters, presumably on the basis of Kagan’s memo in which she suggested that faith-based groups should not receive money for certain activities. Pregnancy care centers, she thought at the time, would not be able to counsel pregnant teenagers without injecting their religious beliefs.

The Times reported that at her more recent confirmation hearing Kagan “said presuming a religious organization would use money in an impermissible manner was incorrect.”

But Kagan was even stronger than that. In a colloquy with Senator Arlen Specter, Kagan said that upon reviewing her memo espousing that view, she concluded that such a view “was the dumbest thing I’ve ever read.”

As strong proponents of the “faith-based initiative,” and appropriate government support for the work of religious organizations, we at the Orthodox Union find Ms. Kagan’s review and revision of her views encouraging.

We have to wonder what those organizations (such as our friends at the ADL and the RAC who so passionately continue to assert the view Kagan originally expressed in her memo to Marshall as a core element of their “church-state” philosophy will say about the Supreme Court nominee.

Stay tuned.