WASHINGTON (ABP) — Supreme Court nominee Elena Kagan’s questioning before the Senate Judiciary Committee wound down July 1, a day after she faced the only direct questions regarding religious freedom she received during her three-plus days of testimony before the panel.
Elena Kagan (official photo)
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The committee’s members spent much of the June 28-July 1 confirmation hearing asking Kagan questions about her overall judicial philosophy, her judicial heroes, controversial social issues — including abortion rights and gay rights — and the extent of the Second Amendment’s protection of the right to bear arms. But only a handful of senators asked her directly about religious freedom — and none until the third day of questioning June 30.
“I believe our nation was founded on the principle that the United States would never be a place for religious persecution, and therefore religion and the government would remain separate and independent of each other. And I think that's part of what makes us a strong nation, and it also protects us from religious discrimination,” said Sen. Dianne Feinstein (D-Calif.), prefacing the first question about religious freedom Kagan received.
Feinstein went on to ask Kagan — the solicitor general of the United States, former dean of Harvard Law School and President Obama’s pick to replace retiring liberal Justice John Paul Stevens — about the religion protections in the First Amendment.
“What will be your approach to interpreting the Establishment Clause of the Constitution, and how do you believe it works with the Free Exercise Clause?” she said.
The Establishment Clause bars the government from “respecting an establishment of” — or promoting — religion. The Free Exercise Clause bars government from “prohibiting the free exercise” of faith.
Kagan responded that both clauses “are very important to our constitutional system, and neither should be subordinated to the other” and that, in practice, the two sometimes “are in some tension with each other.”
Affirming 'play in the joints'
In such cases, she alluded to previous Supreme Court decisions that said there should be “play in the joints” between the two clauses, and affirmed the concept.
In other words, Kagan explained, “There needs to be some freedom for government to act in this area without being subject to a claim from the other side — some freedom for government to make religious accommodations without being subject to Establishment Clause challenges, and some freedom on government's part to enforce the values of the Establishment Clause without being subject to Free Exercise claims.”
She cautioned that such freedom was necessary “in order to prevent the state from sort of not being able to do anything — from being hamstrung in this area.”
However, she declined to elaborate on which of many tests the court has established that she would use, as a justice, to determine if the government has violated the religion clauses, calling it “a hard, hard question.”
She mentioned several of the tests — in particular, the three-pronged test the court first established in the 1971 Lemon v. Kurtzman decision. Legal conservatives have long criticized that test, and have been attempting for decades to disassemble it.
Picking a particular test, Kagan said, was difficult in the absence of a particular case exhibiting particular facts. “I think that the reason why there are so many tests … is that the Establishment Clause can arise in a very wide variety of contexts, with a very wide variety of factual situations and circumstances, and sometimes one test might be the appropriate way to analyze the problem, and sometimes another. And it's very hard to say kind of in the abstract which is appropriate…. It's a more contextual inquiry as to what's the approach to use that would make sense.”
Kagan said that, generally, “what both First Amendment clauses are designed to do — and this is the way in which they work hand-in-hand with each other — what they're both designed to do is to ensure that you have full rights as an American citizen. You are a part of this country, no matter what your religion is, and to ensure that religion just never functions as a way to put people — because of their religious belief or because of their religious practice — at some disadvantage with respect to any of the rights of American citizenship.”
Taxpayer standing
Feinstein also asked Kagan to explain her views on taxpayers’ ability to sue the government over violations of the Establishment Clause — and specifically how she felt about the court’s 2007 decision in Hein v. Freedom From Religion Foundation, which significantly limited taxpayers’ ability to sue over Establishment Clause violations by the executive branch.
“The problem is, if taxpayers don't have the ability to bring a case, who does have the ability to bring a case and allow whether the executive branch is complying with the Constitution?” Feinstein said.
Kagan dodged a direct answer to the question, recounting the current state of case law post-Hein and noting that she has to pick her words cautiously. “I want to be very careful here, because there is a taxpayer-standing issue, as I understand it, that will be before the court next term," she said.
Later, in response to a specific question from Sen. Ben Cardin (D-Md.), Kagan elaborated on a different kind of test for Establishment Clause violations — whether a governmental action coerces belief. In this case, the Establishment Clause question was about public-school students being forced to listen to graduation prayers.
“As the court's precedent has come down, it seems a highly fact-specific inquiry,” she said. “The court's cases essentially see a difference between coercion of adults — thinking that adults can kind of stand up for themselves — and coercion of children, where there's a greater fear of the government's coercive impact. I think that [the court’s] Lee v. Weisman [decision] reflects that. But it is a contentious area in the law. With some people, I think that case is a good example of the way that people can look at the same kind of action and some see coercion and some not.”
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Robert Marus is managing editor and Washington bureau chief for Associated Baptist Press.
Previous ABP stories:
Kagan's church-state and social-issue views not clear from scant record (5/10/2010)
Supreme Court denies taxpayers ability to sue Bush over faith-based funding (6/25/2010)