CFI Urges Senate Judiciary Committee to Question Kagan on Religious Liberty

June 25, 2010


In anticipation of the upcoming confirmation hearings on US Solicitor General Elena Kagan’s nomination to the Supreme Court, the Center for Inquiry today send a letter to Senator Patrick Leahy, chair of the Senate Judiciary Committee, and Senator Jeff Sessions, Ranking Member, urging the Committee to question Kagan about her views on religious liberty and the Establishment Clause.

 CFI has raised concerns stemming from Ms. Kagan’s record on religious liberty, as detailed in documents released to the Senate Judiciary Committee during her current nomination and her nomination to serve as U.S. Solicitor General.  For example, during her time serving in the Clinton White House, Ms. Kagan declined to press for changes to the “charitable choice” provisions in the Welfare Reform bill that would have prohibited taxpayer funding of “pervasively sectarian institutions” performing government-funded social services.   Ms. Kagan also acknowledged the concerns of civil rights organizations that federal statutes designed to shield exercises of religious freedom, such as the Religious Liberty Protection Act (RLPA), could be used to circumvent civil rights protections for minorities, including critical state and local laws protecting the LGBT community.  In an e-mail to Vice President Al Gore’s office, however, she stated that she was “the biggest fan of [RLPA] in this building,” and went on to urge the Vice President not to reference the statute in a speech because of potential objections by the LGBT community.

CFI’s letter urged the Committee to question Ms. Kagan about her views on the Establishment Clause in general, as well as her particular views regarding government funding of religious activities and the relationship between civil rights laws and claims of religious freedom.  CFI recommended that the Committee pose the following five questions to ascertain Ms. Kagan’s views on religious liberty and church-state separation:

1. Does the Establishment Clause require neutrality with respect to religion and non-religion, meaning that government may not act in any way that would favor religion in general over non-religion? Does the Establishment Clause instead merely require that government may not favor any one religion over others?

2. What test or tests should the Court apply in Establishment Clause cases: the three-part test in Lemon v. Kurtzman , 403 U.S. 602 (1971), Justice O’Connor’s “endorsement test,” Justice Kennedy’s “coercion test,” or some other test? In what way does the answer depend on the nature of the case before the Court?

3. To what extent does Ms. Kagan agree with the holding in Bowen v. Kendrick , 487 U.S. 589 (1988), that “pervasively sectarian” organizations that cannot or will not separate their religious activity from their secular activity are constitutionally barred from receiving government funding? In what circumstances, if any, is it permissible for the government to fund pervasively sectarian organizations?

4. Does the Free Exercise clause ever make it necessary for the government to carve out exceptions to generally applicable laws that burden an individual’s ability to exercise his or her religious belief? If it does, what test should be applied, or what factors should be considered, in determining whether an exemption should be granted?

5. There are some instances in which civil rights protections may conflict with claims of religious liberty. For example, Ms. Kagan has acknowledged the concerns of civil rights organizations that the Religious Liberty Protection Act (RLPA) could be used to avoid compliance with civil rights laws, including state and local laws protecting the civil rights of the LGBT community. (Email from Eli Attie to Elena Kagan, “FYI – Bill Galston asked me to share this with you as an FYI,” May 20, 1999 at 1:28 pm.) How do the RLPA, the Religious Freedom Restoration Act, and other protections of religious liberty interact with civil rights protections? Does government have a compelling interest in enforcing its civil rights protections, or do incidental burdens on religious freedoms sometimes defeat that interest?


CFI’s letter concluded that “If she is confirmed, Ms. Kagan will have enormous and longstanding influence on the development of church-state jurisprudence and the interplay between religious and civil rights. It is therefore critical that the Committee ascertain Ms. Kagan’s views on these matters during next week’s hearing.” 

CFI intends to follow closely Kagan’s nomination hearings, which are scheduled to begin on Monday morning.