Legal Commentary

Kagan Memo on Religious Freedom

By Eugene Volokh

The New York Times reports that,

[Kagan, as a White House lawyer during the Clinton Administration,] recommended that the federal government intervene in a case to support religious freedom. The California Supreme Court ruled that a landlord violated a state law prohibiting housing discrimination by refusing to rent an apartment to an unwed couple because she considered sex outside marriage to be a sin.

Ms. Kagan scorned the California justices? rationale that the landlord?s religious freedom was not burdened because she could get another job. ?The plurality?s reasoning seem 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,? Ms. Kagan wrote.

Prof. Chris Lund found the memo itself, and I uploaded it; the California Supreme Court opinions are here, and a brief explanation of the history of the Religious Freedom Restoration Act is here. (Note that the memo was written before the Supreme Court held that RFRA exceeded Congressional power when applied to the states.)

For whatever it?s worth, I agree with the memo. But note that the memo doesn?t reveal Kagan?s views on the bottom line question, which turns on ?whether the state has a compelling interest in application of its anti-discrimination provision, which would justify imposing a substantial burden on Smith?s religious practice.?

Full post as published by The Volokh Conspiracy on June 12, 2010 (boomark / email).