DIVINING MS. KAGAN
Rabbi Avi Shafran
Imagining that one can divine how a new Supreme Court justice will rule on the sort of fundamental issues often brought before the High Court – particularly when the Justice has never before served as a judge – is a pastime best left to gamblers and fools.
Even Justices who had long judicial records before ascending to a seat on the nation’s highest court have sometimes surprised observers with positions they subsequently took. Certainly a Justice who has no track record on the bench whatsoever – our newest member of the Supreme Court, Elena Kagan – cannot at this point be counted on as a safe vote for anything.
Still, there are subtle indications of the new Justice’s legal philosophy that can be at least noted with – depending on one’s beliefs – either hope or dread. Certainly, the fact that Americans United for Separation of Church and State expressed concern during the nomination process about Ms. Kagan’s views on religious liberty and the funding of religiously sponsored social service programs is, at least from an Orthodox Jewish perspective, cause for hope.
The descriptively named organization’s concerns were about Justice Kagan’s attitude toward the U.S. Constitution’s First Amendment, which bars the government both from “the establishment of” religion (the Establishment Clause) and from “prohibiting the free exercise of” religion (the Free Exercise Clause). During the hearings on her nomination, Ms. Kagan mirrored the inherent tension between the two clauses by stating that “there needs to be some freedom for government to make religious accommodations… and some freedom… to enforce the values of the Establishment Clause.”
Her further comment, that the Constitution intends to “ensure that you have full rights as an American citizen… no matter what your religion is… and to ensure that… people – because of their religious belief… [are not placed] at some disadvantage with respect to any of the rights of American citizenship,” might have discomfited some. Many religious Americans, though, had reason to take heart at Ms. Kagan’s words.
As they did about revelations of other positions she has promoted. When, for instance, in 1995, Congress endorsed the concept of “charitable choice” – the forerunner of the “faith-based” program, which enables religious groups to access federal funds to provide social services – Ms. Kagan, then Bill Clinton’s associate White House Counsel, wrote in a memo that she was not in favor of a provision that would bar such funding for “pervasively sectarian” organizations.
Similarly, two years later, in a memo on a Clinton proposal to subsidize volunteers working with religious groups, Ms. Kagan wrote: “It seems to me that we have to give people a very strong signal that we need to find some way of including people who are doing service activities under the auspices of [religious] programs.” She added that “At the very least, we should be able to include participants in programs that aren’t ‘pervasively sectarian'” – seeming to imply that she was even open to the broader model.
And in 1999, she called herself “the biggest fan… in the building” of the Religious Freedom Restoration Act, which helped prevent the enactment of laws that might substantially hinder Americans’ religious freedom. (Although her declaration was in the context of advising then Vice-President Al Gore’s staff to not mention it at what she considered a sensitive time.)
Perhaps most encouraging (and impressive in a personal way) was her willingness, during hearings on her nomination last year for the post of solicitor general, to admit that something she wrote in 1987 while clerking for Justice Thurgood Marshall was “deeply mistaken” and “utterly wrong.” That something was the notion that “all religious organizations should be off limits” when government funding is being used to offer instruction to adolescents about their personal behavior. Although she took pains to note that “the use of a grant in a particular way by a particular religious organization might constitute a violation” of the First Amendment if the funds were used to promote “specifically religious activity,” her description of her earlier memo as “the dumbest thing I’ve ever read” indicates a realistic and inclusive attitude toward religious groups’ involvement in federal programs – and a refreshing honesty.
None of which is to say that there aren’t things in Ms. Kagan’s record that are cause for concern to some of us religious Americans.
During her tenure in the Clinton administration, she played an aggressive role – some would say an inappropriate one – in defending “partial birth abortion.” On another social front, her ban on military recruitment at Harvard Law School where she served as Dean, because of the military’s “Don’t ask, don’t tell” policy, has generated some concern regarding her apparent support for some of the more extreme positions of the “gay rights” agenda. (Although, during her nomination hearings in 2009 for the position of Solicitor General, she did clearly state that “there is no federal constitutional right to same-sex marriage.”)
Still, these qualms aside, it would appear that our new Supreme Court Justice has deep sensitivity to issues of religious liberty. That is cause for optimism, especially when her views are contrasted with those of the man she has replaced – Justice John Paul Stevens. Justice Stevens consistently voted against government aid to religious institutions, and took an extremely narrow view of the scope of protection afforded by the Free Exercise Clause.
The conventional wisdom is that Justice Kagan’s replacing former Justice John Paul Stevens heralds no real change in the Court’s ideological makeup. With respect to issues of religious freedom, though, that may not be the case.
Will Justice Kagan turn out to be Stevens redux or a Justice of a very different stripe? Time will tell, but, at least with regard to her approach to the First Amendment’s religion clauses, here’s hoping we will see a meaningful upgrade.
Rabbi Shafran is director of public affairs for Agudath Israel of America. (c) 2010 AM ECHAD RESOURCES