Questions for Solicitor General Elena Kagan in Her Supreme Court Confirmation Hearings

This letter, containing questions that the Secular Coalition for America developed regarding Solicitor General Elena Kagan's record on church-state separation issues, was sent to Senate Judiciary Chairman Patrick Leahy as well as all the other members of the Senate Judiciary Committee.


June 24, 2010

The Honorable Patrick Leahy
United States Senate
Washington, DC  20510

Dear Mr. Chairman:

We commend you on your actions to ensure a fair and adequate process for the Senate Judiciary Committee's review of President Obama's nomination of Solicitor General Elena Kagan to the United States Supreme Court.  Any appointment to the Supreme Court is a momentous event in the life of our country.  However, this particular nomination is of singular importance to those of us who understand the necessity of the wall separating church and state, as Elena Kagan would succeed Justice John Paul Stevens, a justice whose opinions on church-state separation have always been principled and thoughtful, and there are deep divisions in the current court on questions related to religion.

Justice John Paul Stevens’ legacy will include his finely crafted opinions concerning the Establishment Clause of the First Amendment to the U.S. Constitution, opinions that demonstrate an understanding of the Framers' concerns about the promotion of religion(s) by government.

With a Supreme Court that has frequently decided questions affecting the application of the Establishment Clause by the narrowest of margins,  it is extremely important that the next justice share Justice Stevens’ respect for the separation of church and state. In order to ascertain whether or not she will similarly uphold the Establishment Clause, we believe that it is important that Solicitor General Kagan be asked the following questions.

1.    During your confirmation hearings for Solicitor General, you commented on a memo you authored while a clerk for Justice Thurgood Marshall pertaining to Bowen v. Kendrick. Your memo addressed whether religious groups should be able to receive public funding for certain secular activities. You characterized your reasoning in your own memo as “deeply mistaken” and “utterly wrong.”  Yet your reasoning in the memo was consistent with the reasoning in the Bowen dissent, supported by both Justice Marshall and Justice Stevens.  You seek to serve in the seat Justice Stevens is vacating. Do you agree or disagree with the reasoning of Justice Stevens in Bowen and why?  Would you characterize his reasoning as “deeply mistaken” or the “dumbest thing I’ve ever read” as you did your own reasoning on the same case? If not, please specify how you would distinguish the reasoning in your memo from that of the dissent that Justice Stevens supported?

2.    Under the rubrics of charitable choice and the Faith-Based Initiative, religious organizations that receive federal grants to provide social services have been permitted or even encouraged to use religious criteria to discriminate in hiring for the programs receiving those grants.  Do you believe that taxpayers can be subjected to employment discrimination by religious institutions when applying for jobs financed by their own tax dollars?

3.     In Zelman v. Simmons-Harris, 536 U.S. 639 (2002), the Court ruled that the Ohio voucher program did not violate the Establishment Clause of the First Amendment.  Justice Stevens in his dissent wrote that "... the voluntary character of the private choice to prefer a parochial education over an education in the public school system seems to me quite irrelevant to the question whether the government's choice to pay for religious indoctrination is constitutionally permissible." Do you agree with Justice Stevens’ opinion?

4.    In your testimony at your hearing for confirmation as Solicitor General, you stated that “religious organizations are different and that these differences are sometimes relevant for the purposes of government funding.”  How are religious organizations different from secular organizations for First Amendment purposes?  What limits does the Establishment Clause place on government funding that flows to faith-based organizations?  In what other ways does the special nature of religious institutions call for different treatment under the Constitution?

5.    Traditionally, Free Exercise rights have been accorded both to individuals and to institutions.  What do you believe is the scope of those rights?  How does the Free Exercise Clause protect the practice of faith by individuals and institutions?  To what extent, if any, do Free Exercise protections differ when cases involve institutions rather than individuals?  And what additional protections, if any, does the doctrine of religious autonomy provide for religious institutions?

6.    What is the authority of Congress to regulate state action in the interest of protecting individuals from violations of their Equal Protection rights under the 14th Amendment? Please answer both generally as well as specifically in regards to legislation designed to protect individual and institutional religious liberty.

7.    The Court has historically recognized a special category of taxpayer standing in Establishment Clause challenges (Flast v. Cohen, 392 U.S. 83 (1968)).  The Court has recently discussed this precedent in Hein v. Freedom From Religion Foundation, 551 U.S. 587 (2007). Is it important to provide special leeway for taxpayers to bring Establishment Clause lawsuits? If so, why, and how should courts do so?

8.    In Smith v. Fair Employment, the California Supreme Court found that there was no substantial burden placed on the plaintiff and forced her to comply with a generally applicable non-discrimination law.  While working as Associate White House Counsel in the Clinton administration, you authored a memo calling this finding and the reasoning behind it “quite outrageous.” Do you believe general nondiscrimination laws pose a substantial burden on people who want to discriminate based on their religious views?

9.    In the memo on the case Smith v. Fair Employment dated August 4, 1996, you briefly noted disagreement among religious organizations as to whether there was a compelling state interest that justified imposing a substantial burden on the religious practices of the plaintiff in that case.  If you were ruling today and the court had found a substantial burden on Mrs. Smith’s religious beliefs, would you rule that compelling a state interest justifies imposing that substantial burden?

10.    In a memo dated May 20, 1999, you stated you were the “biggest fan of RFRA” in the White House. Please explain what you meant by this statement.   Do you agree with the Court’s ruling in City of Boerne v. Flores 521 U.S. 507 (1997)? Also, please expound on your views regarding RFRA as applied to the federal government.

11.    What are the aims of the Free Exercise and Establishment Clauses of the Constitution? What values do they seek to protect?  How, and in what ways, has the Court’s jurisprudence safeguarded or eroded these values?

We appreciate your attention to these questions as you prepare for these critical hearings.

Sincerely,

Sean Faircloth
Executive Director
Secular Coalition for America

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