 BJC releases report on nominee to the U.S. Supreme Court, U.S. Solicitor General Elena Kagan
An earlier version of this report, prepared prior to the final release of documents from Elena Kagan's service in the Clinton administration, was printed in the June 2010 Report from the Capital.
Introduction
President Barack Obama's nomination of U.S. Solicitor General Elena Kagan to replace retiring U.S. Supreme Court Associate Justice John Paul Stevens was not surprising. Kagan was considered a frontrunner before Associate Justice Sonia Sotomayor was nominated last summer to replace Associate Justice David Souter. While widely admired for excellence in her profession, Kagan has expressed few opinions on matters that are likely to come before the Court. As a result, even those who know her well characterize her as "inscrutable."
While the BJC does not endorse or oppose Supreme Court nominees, we traditionally have prepared reports examining their church-state records. We follow the nomination process closely, reviewing the nominee's writings for clues about his or her approach to religious liberty and how it compares to that of the justice to be replaced. We often urge members of the Senate Judiciary Committee to question the nominee about particular concerns raised during our review, and we have done so with regard to this nomination.
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If confirmed, Kagan would replace Justice Stevens, who was nominated by Republican President Gerald Ford but became the leader of the Court's liberal wing and participated in dozens of church-state cases during his 34 years on the bench. From the BJC's perspective, Justice Stevens has a strong record on Establishment Clause cases, opposing threats to government funding or other sponsorship of religious practices that can harm religious liberty. His record in cases dealing with the Free Exercise Clause or legislative accommodations for religion, however, has often been weaker than the positions advocated by the BJC. (See the May 2010 edition of Report from the Capital for reflections on Stevens' tenure on the Court.) Most recently, Justice Stevens wrote the primary dissent in Salazar v. Buono, a case in which the Court allowed a cross to remain on public land, as urged by the government, represented by Solicitor General Kagan.
Predictions about the future impact of a justice are always precarious, and review of the Kagan nomination has proven especially difficult. Kagan has never been a judge. With no written decisions to review, there is much less on which to base an analysis. Legal journalist Jeffrey Toobin, who has known Kagan since they began Harvard Law School together, was asked by CNN about Kagan's political perspective. After noting that she is a Democrat who served in the Clinton and Obama administrations, he added, "What is unclear, however, is her stand on specific social issues that go before the court - affirmative action, abortion, church and state issues. Unlike a sitting judge, she has never been forced to write opinions on those issues, and she has chosen not to write about them as an academic. As far as I know, she has not even talked about her views."
Absent a judicial record, Kagan's qualifications will be assessed in reference to her experience as an attorney in private practice, professor, dean and perhaps most notably as a legal advisor in the Clinton administration. While little is known about her personal views on church-state issues, she has been involved in a number of religious liberty issues at the highest levels of government from the beginning of her career to her most recent post, and she has engaged constructively with religious groups from a broad spectrum.
Kagan at the U.S. Supreme Court
As a law clerk to Supreme Court Associate Justice Thurgood Marshall, Kagan wrote a memo related to Bowen v. Kendrick (1988). That case involved an Establishment Clause challenge to a federal program that provided grants to public and nonprofit private organizations, including religious organizations, for counseling and education services related to problems caused by adolescent sexual relations and pregnancy. In a 5-4 decision, the Court upheld the federal program. The majority opinion, written by then-Chief Justice William Rehnquist, upheld the federal statute on its face, making clear that religiously affiliated grantees could participate in the program so long as they were capable of carrying out their functions in a lawful, secular manner. Justice Marshall dissented. In her memo, Kagan argued that religious organizations should not be able to participate in certain federal programs because it would be difficult for them to do so without injecting religious teaching in violation of the Establishment Clause. When asked about that during her confirmation hearings for Solicitor General, she called it "the dumbest thing I've ever heard."
Kagan's strong rejection of the idea that religious entities should be categorically precluded from federal social services programs is not surprising given the current state of the law and her work on the issue during the Clinton administration when "charitable choice" was first introduced and debated. Her comments, however, do not indicate what constitutional lines she would draw to protect against government-funded religious activity.
The precise legal parameters and best practices for avoiding unconstitutional government promotion of religion when the government partners with religious entities remain important matters of debate, albeit in much more nuanced terms. Specifically, avoiding government promotion of religion in the context of counseling and education programs provided by faith-based providers has been a major concern in efforts to revise regulations adopted as part of the faith-based initiative during the Bush administration. In just the past few months, the Obama administration received recommendations from the President's Advisory Council on Faith-based and Neighborhood Partnerships on reforming how the government operates in such partnerships to reduce legal problems and protect religious freedom. One of those recommendations calls on the government to make it clear that government grants cannot be used for explicitly religious activities or programs with overt religious content.
In her most recent post, as Solicitor General for the Obama Administration, Kagan has again been involved in the Supreme Court's church-state jurisprudence. Since Kagan assumed office in March 2009, the Court has heard two religious liberty cases, one in which the Solicitor General's office participated. Despite lobbying by both sides, the Solicitor's office did not intervene in Christian Legal Society v. Martinez, a case involving a public university's nondiscrimination policy and the Christian Legal Society's First Amendment challenge to the policy as applied to student organizations that restrict membership based on religion. That case was argued in April, and a decision is expected this month.
As mentioned above, however, in one of only six cases she personally argued as Solicitor General, Kagan represented the Obama administration in Salazar v. Buono, a case inherited from the Bush administration. At the time it reached the Court, the issue was not the constitutionality of the cross displayed on federal land (twice ruled an unconstitutional endorsement of religion by lower federal courts). Instead, the government was defending an act of Congress to transfer the federal land on which the cross was displayed to a private party. During oral argument, Kagan was asked by Justice Stevens if she would concede that the Establishment Clause was violated prior to the transfer statute. She said no, maintaining the position the government had taken earlier in the case. Kagan in the Clinton Administration
Kagan's tenure in the Clinton administration provided many opportunities for involvement in church-state policy matters. She served as Associate White House Counsel (1995-96) and Deputy Assistant to the President for Domestic Policy and Deputy Director of the Domestic Policy Council (1997-99), providing advice on a range of issues. While the documents released from her service in the Clinton White House do not necessarily reflect her personal opinions, several show that she was actively engaged on a wide range of issues of concern to the BJC, for a time maintaining the religious freedom portfolio for the Counsel's office.
In one memo from August 1996, Kagan criticized a California Supreme Court decision as a threat to the Religious Freedom Restoration Act (RFRA). The act was passed by Congress in 1993 and signed by President Clinton at the urging of the Coalition for the Free Exercise of Religion that was chaired by the BJC. The California court rejected a landlady's RFRA claim that complying with a state law prohibiting discrimination in housing on the basis of marital status would substantially burden her religion.
The Kagan memo favorably cites a brief that the BJC and some of its coalition partners joined seeking review of the California decision by the U.S. Supreme Court. Kagan characterizes the plurality's reasoning as "quite outrageous - almost as if a state law does not impose a substantial burden on religion because the complainant is free to move to another state" and noted that the decision could "strip RFRA of any real meaning." She urged her superiors to consider talking with the Solicitor General's office about his decision not to intervene, given "the importance of this issue to the President" and "the danger this decision poses to RFRA's guarantee of religious freedom." Then-White House Counsel Jack Quinn ultimately decided not to ask the Solicitor General to intervene in the case, Smith v. Fair Employment and Housing Commission, informing Kagan via handwritten note on her memo that the Administration would consider intervening if the Court took the case, which it ultimately declined to do. Had the U.S. Supreme Court agreed to hear the case, Smith would have been its first opportunity to rule on RFRA's constitutionality (which it would later do in City of Boerne v. Flores in 1997, striking RFRA's application to state and local governments).
Among the other documents released, several faxes and memos indicate cooperation between the White House and religious liberty groups (including the BJC) in drafting and promoting guidelines for religious expression in the federal workplace. Those guidelines were released in August 1997 and continue to be used in discussions about possible workplace religious freedom legislation. Kagan was invited to coalition meetings to discuss versions of workplace religious freedom legislation and a bill to bolster free exercise standards after the Supreme Court's Boerne decision limited RFRA's application.
Some documents reflect the significant debates over changes in the law regarding religious entities that provide government-funded social services. It was during Kagan's service in the Clinton administration that the first "charitable choice" provision was passed (as part of the 1996 Welfare Reform Act), a development that undermined constitutional protections for religious liberty. Documents indicate that Kagan was involved in discussions about a possible technical revision to the welfare law, including the provisions that addressed participation of religious entities. One document shows a handwritten note to Domestic Policy Advisor Bruce Reed suggesting that Kagan did not favor the Department of Justice's effort to support a legislative response to address the part of the welfare reform law that concerned religious entities. Other documents indicate that she participated in discussions about various interpretations of charitable choice. Some notations indicate a view that the charitable choice provisions could be interpreted in a constitutional manner, though some sponsors of the provisions intended them to be more aggressive in allowing pervasively religious organizations to provide government-funded services. While the files do not demonstrate Kagan's views, they show that she has experience analyzing the significant criticism of charitable choice that came from the BJC and others who saw the negative impact of charitable choice on religious liberty law and policy. Conclusion
Despite her lack of judicial experience, Kagan has had many opportunities to engage in significant legal and policy debates about religious liberty. Most of those opportunities came in her service to the Clinton administration (1995-99). Many documents and notes released from the Clinton archives show her active involvement during a significant era of religious liberty developments on a wide range of topics.
Importantly, Kagan has worked on both free exercise and no establishment issues, and, in many instances, cooperated with a variety of religious organizations representing a diversity of views, including the BJC. While her prior experience reveals little, if anything, about her actual views on religious liberty law and policy, it shows significant attention to discussion and debates about the developments in free exercise and no establishment law. Our review of the Kagan record raises no red flags. The BJC will continue to review her record and nomination proceedings to urge attention to religious liberty among the vital issues a Supreme Court justice can influence during his or her lifetime tenure. |
