Church-state separatists urge thorough vetting of Kagan's views

Church-state separatists are urging the Senate Judiciary Committee to question Supreme Court nominee Elena Kagan thoroughly on her views on religious liberty, especially because she would be replacing retiring Justice John Paul Stevens, a strong supporter of church-state separation.

"We simply don't know much about Elena Kagan's views on church-state separation," Barry W. Lynn, executive director of Americans United, said in a statement. "It's the job of the Senate Judiciary Committee to fill in the picture by asking her questions about how religion and government should interact."

Don Byrd of the Baptist Joint Committee for Religious Liberty (BJC) wrote on his blog: "Those of us that care about the First Amendment should press Senators to ask tough questions on the essential freedoms protected by the Constitution, especially when we know so little about the nominee's point of view in that regard."

In assessing Kagan's thin record on the issue, they point to two cases.

In the first, as solicitor general, Kagan argued the Mojave Cross case, on behalf of the government. She said that "sensible action by Congress" to give the VFW control of the cross and the land (as a war memorial) under it solved the 1st Amendment problem of church-state entanglement. The cross is no longer on government land and under government control, she said.

The Supreme Court agreed with her, blocking the removal of cross from its Mojave Desert perch in California, saying separation of church and state "does not require eradication of all religious symbols in the public realm."

In the second case, as a clerk for Justice Thurgood Marshall in 1987, Kagan wrote a memo stating that religious groups should not be able to receive public funding for certain secular activities.

But during her confirmation hearing for solicitor general, Kagan told the committee that when she re-read the memo for the first time in 20 years, she thought it was "the dumbest thing I've ever read."

"It seems now utterly wrong to me that religious organizations generally should be precluded from receiving (government) funds," she told the committee.
She said she was "deeply mistaken" and "utterly wrong" and now believes it is wrong to presume that a religious organization will use grant funds in an impermissible way to further religion.

Kagan would replace Stevens, the court's only Protestant member. But BJC General Counsel K. Hollyn Hollman said that Kagan's judicial philosophy, temperament and respect for religious liberty is "far more important" than her religious beliefs.

"I hope the nominee incorporates Justice Stevens' appreciation for the Establishment Clause, but with a more robust vision for the protections afforded by the Free Exercise Clause and the First Amendment doctrine that ensures the autonomy of religious organizations," Hollman said.

By

David Waters

 |  May 10, 2010; 3:35 PM ET  |  Category:  Under God Save & Share:                 
Previous: Supreme Court could have its first no-Protestant lineup | Next: Who stole Mojave cross?

The comments to this entry are closed.