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Newly Released Kagan Memos Show Her Involvement In Religious Freedom Issues

By Howard M. Friedman

Supreme Court nominee Elena Kagan's views on religious freedom issues may have been fleshed out a bit in the release yesterday by the Clinton Library of 74 boxes of files (some 43,000 pages) of documents relating to Kagan's service from 1995-1999 with the White House in Domestic Policy positions. This supplements other files released earlier this month. (Links to all documents released.) The memo (full text) that is most revealing of Kagan's personal views is one suggesting that the Solicitor General's office should consider supporting a petition for certiorari filed in the U.S. Supreme Court in a housing case. Here is a portion of what Kagan had to say in the memo:

In the case, Smith v. Fair Employment and Housing Commission, the California Supreme Court rejected a RFRA claim brought by a landlady who claimed that complying with a state law prohibiting discrimination in accommodations on the basis of marital status would violate her religion. The plurality opinion of three Justices reasoned that the law did not "substantially burden" her religion, as RFRA requires, because she could earn a living in some other way than by leasing apartments....

The plurality's reasoning seems to me quite outrageous almost as if a court were to hold that a state law does not impose a substantial burden on religion because the complainant is free to move to another state. Taken seriously, this kind of reasoning could strip RFRA of any real meaning.

The New York Times today reports on this memo. Two other memos show Kagan's involvement in religious freedom issues, but shed less light on her personal views. In one (full text) she discusses a proposed Executive Order on religious expression in the federal workplace, writing:

The order recognizes constraints on such expression, imposed by the government's interests in workplace efficiency and the Establishment Clause's prohibition on endorsement of religion. But the order tries to show ... that within these constraints, there is substantial room for discussion of religious matters.... [T]he Department of Justice as a whole is quite negative about the order. DOJ believes that the document does not give enough weight to establishment clause concerns ... [or] to what it has called "sound employment policy," including interests in workplace efficiency. In sum, DOJ believes the document conveys a tone that is too permissive of employee religious expression.

Kagan's third memo (full text) reacted to requests that the White House examine an FBI search of World Christian Church and an associated university. Some of those complaining claimed the federal government was trying "to totally regulate all Christian education." [Thanks to Christopher Lund via Religionlaw for the lead.]

Full post as published by Religion Clause on June 13, 2010 (boomark / email).