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Home arrow Blog arrow Kagan Discusses Religious Freedom, Difficulty of Establishment Clause [Updated x2]
Kagan Discusses Religious Freedom, Difficulty of Establishment Clause [Updated x2] E-mail
Written by Don Byrd   
Wednesday, 30 June 2010

Late in the morning session of Day 3 of her confirmation hearings, Elena Kagan was questioned about the religious freedom clauses of the First Amendment. Responding to Senator Dianne Feinstein (D-CA), she confessed that how to interpret the Establishment Clause is a "hard, hard" question. As I wrote in my liveblog of the hearing, the look on her face suggested she meant it.

Her answer included this explanation of her view of the overarching purpose of the religion clauses.

In general, I think, what both First Amendment clauses are designed to do - and this is the way in which they work hand in hand with each other - what they're both designed to do is to ensure that you have full rights as an American citizen. You are a part of this country, no matter what your religion is, and to ensure that religion just never functions as a way to put people because of their religious belief or because of their religious practice at some disadvantage with respect to any of the rights of American citizenship. So, I think that that's the sort of overall purpose of both parts of the amendment.

See below for my rough transcript of the entire question and answer with Senator Feinstein. [UPDATE: Later, Senator Cardin followed up with General Kagan on this exchange. My transcript of that question and answer has been added below.]

FEINSTEIN: My question is on the Establishment Clause. I believe our nation was founded on the principle that the United States would never be a place for religious persecution, and therefore religion and the government would remain separate and independent of each other. And I think that's part of what makes us a strong nation, and it also protects us from religious discrimination. Here is the question, and let me put it all into one:

What will be your approach to interpreting the Establishment Clause of the Constitution, and how do you believe it works with the Free Exercise clause; and, then if you could respond also on the question of standing to sue - the ability to bring a case in the federal court. In the case of Hein v FFRF that held that taxpayers no longer have constitutional standing to bring challenges to the Executive branch expenditures on the grounds that they violate the Establishment Clause. The problem is, if taxpayers don't have the ability to bring a case, who does have the ability to bring a case and allow whether the Executive branch is complying with the Constitution. That's three things at one time, but I think you're probably able to handle them.

KAGAN: Ok, Sen Feinstein, I'll try. I guess I'll start with the question of the two clauses, because both are very important to our constitutional system, and neither should be subordinated to the other. There are times when they are in some tension with each other. Now, I think it's important to recognize that there are many times where that's not so, where they in fact go hand in hand and function perfectly well together, but there are some times when they may be in tension and they can cut in either direction.

So, suppose that a state government decides to give what is called a "voluntary accommodation" to some religious person - essentially a voluntary exemption of that person from an otherwise generally applicable law - and does that because the law would impose some substantial burdens on that person's religious practice, and the state thinks: "you know what, in those circumstances we think that the person should be exempted from the law so that the person can follow the dictates of her conscience." But then somebody else comes in and says, "well, what do you mean? You're giving that exemption but you're not giving me an exemption and why are you making that sort of special accommodation to this person? That special accommodation must count as an establishment of religion." And so there you get a claim where there's an accommodation to the free exercise of religion, but then there's a claim that that violates the Establishment Clause part of the First Amendment. And that's the kind of way in which there might be tension.

But what the court has said with respect to this issue - and there seems to me great virtue in this approach - is that in order to prevent that from happening, or to prevent it the other way - where the state does something in order to advance Establishment Clause values and then somebody comes in and makes a Free Exercise claim. Either way, what the court has stated is that there needs to be some "play in the joints." There needs to be some freedom for government to act in this area without being subject to a claim from the other side - some freedom for government to make religious accommodations without being subject to Establishment Clause challenges, and some freedom on government's part to enforce the values of the Establishment Clause without being subject to Free Exercise claims. That's not to say how any particular case should come out, because sometimes the state goes too far, but that in general there needs to be a little bit of "play in the joints" in order to prevent the state from sort of not being able to do anything, from bring hamstrung in this area.

As to what Establishment Clause test I would use, that is a hard, hard question. Right now there are a multitude of such tests. The most established one, the oldest one, is the Lemon v Kurtzmann test, which is a three-part test focusing on the purpose of a governmental action, the effect of a governmental action - whether the governmental action has the primary effect of inhibiting or advancing religion, and the third part of the test focuses on entanglement between the government and the religious entity. Many, many justices have tried to kill this test. I think that there have been six individual justices who at least have expressed some skepticism about it. But it continues on; it has not been reversed, and it's usually the test that the lower courts apply. Its sometimes applied and sometimes not applied by the Supreme Court very much depending on the circumstances, but it continues to be the primary test of the court.

Now, other justices have had different ways of approaching this issue. Justice O'Connor  famously asked about whether particular actions would be seen by reasonable observers as endorsements of religion. Some of the justices have used a kind of coercion test: asking whether a governmental action coerces a person in the exercise of religion. Justice Breyer has recently talked about religious divisiveness as a way to approach Establishment Clause inquiries. And I think that the reason why there are so many tests - and I don't think that I've mentioned all of them, even - I think that the reason is that the Establishment Clause can arise in a very wide variety of contexts, with a very wide variety of factual situations and circumstances, and sometimes one test might be the appropriate way to analyze the problem, and sometimes another. And it's very hard to say kind of in the abstract which is appropriate. It's a matter of sort of situation sense, if you will. It's a more contextual inquiry as to what's the approach to use that would make sense.

In general, I think, what both First Amendment clauses are designed to do - and this is the way in which they work hand in hand with each other - what they're both designed to do is to ensure that you have full rights as an American citizen. You are a part of this country, no matter what your religion is, and to ensure that religion just never functions as a way to put people because of their religious belief or because of their religious practice at some disadvantage with respect to any of the rights of American citizenship. So, I think that that's the sort of overall purpose of both parts of the amendment.

As to the matter of taxpayer standing, I want to be very careful here because there is a taxpayer standing issue as I understand it that will be before the court next term. The court has stated that taxpayers have standing to make certain kinds of Establishment Clause claims, specifically claims against congressional legislation, that a taxpayer can - by virtue of being a taxpayer - can sue to contest governmental actions taken under Congress' power to appropriate money, but that a taxpayer may not have standing to contest Executive action just by virtue of being a taxpayer.

Now that doesn't mean that there may not be somebody who has standing to contest such action. I think what the court has suggested is that the normal injury that Article III requires has to be shown. The injury can't come just by virtue of being a taxpayer, but has to come from something else in addition. 

FEINSTEIN: Such as the individual being actually affected.

KAGAN: Yes, exactly right.

Later, Senator Ben Cardin (D-MD) followed up with Kagan on this exchange:

CARDIN: You said that there is some "play in the joints" for the government to act to make reasonable accommodations for religion, consistent with both the Free Exercise and Establishment Clause, and then you mentioned the Lemon 3-part test from 1971, which you correctly noted has not been overturned but has not always been used by the court either. I want to focus on the test used by Justice Kennedy in the court opinion of Lee v Weissman, in which he struck down as unconstitutional school-sponsored prayer at a public school graduation ceremony. I guess my question to you is what special protections should students have under the Establishment Clause?

KAGAN: Well what Senator [sic] Kennedy focused on - I think I said to Sen Feinstein that some members of the court have used on certain occasions a coercion test, the question as to whether a particular governmental action coerces a person in his or her religious beliefs. The Lee v Weissman case is one that does use that coercion test, in a way that provokes strong disagreement as well: the question about whether or not that graduation prayer did coerce students in a constitutionally meaningful manner. Senator [sic] Kennedy and a majority of the court held that it did. 

As the court's precedent has come down, it seems a highly fact-specific inquiry. Certainly the coercion test is used most often when it comes to children. The court's cases essentially see a difference between coercion of adults - thinking that adults can kind of stand up for themselves, and coercion of children where there's a greater fear of the government's coercive impact. I think that Lee v Weissman reflects that. But it is a contentious area in the law. With some people, I think that case is a good example of the way that people can look at the same kind of action and some see coercion and some not.

The last questioner of the day, Senator Coburn (R-OK) asked Kagan about those remarks with respect to the coercion test:

COBURN: Do you find it ironic that the coercion test applied to graduating seniors from high school who are old enough to go and die for this country but the coercion test says they are not old enough to make a decision about something they hear? Is that ironic to you?

KAGAN: Senator Coburn I've tried hard not to characterize particular decisions, not to grade them, not to give them a thumbs-up or thumbs-down.

COBURN: You would admit there's some irony there.
KAGAN: I did talk about attribute of the coercion test is that, you know, four different people can look at a practice and have four different views as to whether coercion has in fact taken place. I think everybody would say that adults are different than children. I think the question of you know, sort of who counts as a child and who counts as an adult is one of those matters that I think the coercion test notably presents, that different people can look at the same set of facts and reach different conclusions as to whether the government in fact has engaged in coercive activity.

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