The Progressive


A project of Common Dreams

For Immediate Release
Contact: (202) 466-3234,Joe Conn,Rob Boston,Sandhya Bathija

Americans United Urges Senate Panel To Question Kagan On Church-State Views


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
  • 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.