Kagan’s Rehnquist-like Establishment Clause

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During her confirmation hearings to be solicitor general last year, Elena Kagan was asked by Arlen Specter to discuss a memo she wrote while clerking for Justice Thurgood Marshall in 1988. 

Senator, thank you for raising that memo. I first looked at that memo, thought about that memo, for the first time in 20 years, I suppose, just a couple of days ago when it was included on a blog post. And I looked at it and I thought, ”That is the dumbest thing I have ever heard.”





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So what was so dumb? The memo concerned the case of Bowen v. Kendrick, in which a federal district court had found that the Adolescent Family Life Act, which
authorized Federal funds for religious organizations designed to
discourage teen pregnancy and provide care to pregnant teens, violated the First Amendment’s ban on religious establishments. What Kagan had written was this:

I think the [district court] got the case right. The funding here is to be used to support projects to discourage adolescent pregnancy and to provide care for pregnant adolescents. It would be difficult for any religious organization to participate in such projects without injecting some kind of religious teaching. The government is of course right that religious organizations are different and that these differences are sometimes relevant for the purposes of government funding. The government, for example, may give educational subsidies to religious universities, but not to parochial schools. But when the government funding is to be used for projects so close to the central concerns of religion, all religious organizations should be off limits.

Now in fact, this was precisely in line with the dissent written by Justice Blackmun and signed by Justices Brennan, Marshall, and Stevens (the man Kagan hopes to replace) in the 5-4 decision. They were not exactly a dumb bunch, and here are some bits of their opinion:

The AFLA, unlike any statute this Court has upheld, pays for teachers and counselors, employed by and subject to the direction of religious authorities, to educate impressionable young minds on issues of religious moment. Time and again we have recognized the difficulties inherent in asking even the best-intentioned individuals in such positions to make “a total separation between secular teaching and religious doctrine.” Lemon v. Kurtzman 403 U.S. at 619…

There is a very real and important difference between running a soup kitchen or a hospital, and counseling pregnant teenagers on how to make the difficult decisions facing them. The risk of advancing religion at public expense, and of creating an appearance that the government is endorsing the medium and the message, is much greater when the religious organization is directly engaged in pedagogy, with the express intent of shaping belief and changing behavior, and where it is neutrally dispensing medication, food, or shelter.

This view lost out to a Rehnquist-led majority that was in the process of making the Court’s Establishment Clause jurisprudence far more accommodating to religion. For Kagan to treat her own expression of it as a species of juvenile dopiness was a little, shall we say, disingenuous.

As it happened, Sen. Sessions picked up on the remark and, in a written follow-up, asked Kagan to explain her current view of the memo in particular and the Establishment Clause in general. Her response was that she now agreed with the Bowen Court:

As that Court recognized, the use of a grant in a particular way by a particular religious organization might constitute a violation of the Establishment Clause–for example, if the organization used the grant to fund what the court called “specifically religious activity.” But I think it incorrect (or, as I more colorfully said at the hearing, “the dumbest thing I ever heard”) essentially to presume that a religious organization will use a grant of this kind in an impermissible manner.

It is perhaps the case that Kagan has changed her mind, in line with the Court’s new accommodating stance. Or it’s possible that, in the manner of the administration she now serves, she simply wanted to avoid disturbing religious conservatives with the kind of church-state separationism that was mainstream judicial opinion a generation ago. Either way, she ought to be asked at her confirmation hearings just how dumb she now thinks that separationism was. [Ha ha.]