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New Focus On Elena Kagan's Religious Liberty and Church-State Views

By Howard M. Friedman

As hearings on the nomination of Elena Kagan for the Supreme Court approach, more focus is now being given to her views on religious liberty and church-state separation. Brookings Institution fellow Melissa Rogers suggests that Kagan may be more sympathetic to free exercise claims than is Justice Stevens whom she is replacing.

Americans United for Separation of Church and State has written to the Chairman and Ranking Member of the Senate Judiciary Committee raising concerns about Kagan's "views on the critical relationship between religious liberty claims and civil rights laws" and about "her position on core Establishment Clause values, such as the principle that the government may not fund 'pervasively sectarian' organizations." (Press release, full text of letter).

Several Jewish groups have weighed in on the Kagan nomination. The Union of Orthodox Jewish Congregations wrote to to members of the Senate Judiciary Committee saying that "Kagan has demonstrated a reassuring appreciation for the rights guaranteed by the Free-Exercise clause and a growing respect for a balanced approach to the Establishment Clause which allows for appropriate government support for the work of religious organizations." (Press release, full text of letter). The Religious Action Center for Reform Judaism wrote members of the Judiciary Committee recommending a number of questions that should be asked of Kagan. They cover not just church-state matters, but also issues such as the death penalty, corporate election contributions, abortion, gay marriage, environmental laws and Presidential powers. (Full text of letter). The Rabbinical Alliance of America (representing 850 right wing Orthodox rabbis) issued a strong statement denouncing the Kagan nomination, releasing it through Christian Newswire.

The Secular Coalition for America issued a statement opposing the Kagan nomination "until she makes her support for church-state separation much more clear and emphatic." It also sent a letter to the chairman of the Senate Judiciary Committee with suggested questions for Kagan.

Meanwhile, US News & World Report says that one of the key issues that Republican Judiciary Committee members will raise with Kagan is her praise in 2006 for activist Israeli Supreme Court Judge Aharon Barak. In presenting Barak with an award at Harvard Law School, Kagan called him "my judicial hero."

The Judiciary Committee hearings begin on Monday, June 28. The Committee has extensive materials on the nomination posted on its website. The hearings will also be webcast through the Committees website.

Full post as published by Religion Clause on June 25, 2010 (boomark / email).