With a reliably liberal justice like John Paul Stevens stepping down from the Supreme Court, his potential replacement Elena Kagan has a lot to prove when looking for support.
Since her nomination hearings are set to begin Monday, groups are weighing in on what the Judiciary Committee should be asking her.
… Secular Coalition for America opposes Ms. Kagan’s nomination until she makes her support for church-state separation much more clear and emphatic. Five instances raise grave concern that Ms. Kagan does not share the judicial philosophy of Justice Stevens…
It is possible that during her confirmation hearings, Ms. Kagan will expand upon her positions, and emerge a more acceptable nominee. But for now the evidence points in an unfavorable direction. The Secular Coalition for America has composed a series of questions addressed to members of the Senate Judiciary Committee that will hopefully clarify where Solicitor General Kagan stands on a series of church-state related issues which we strongly urge the committee to ask.
Among the questions sent to Senator Patrick Leahy:
2. Under the rubrics of charitable choice and the Faith-Based Initiative, religious organizations that receive federal grants to provide social services have been permitted or even encouraged to use religious criteria to discriminate in hiring for the programs receiving those grants. Do you believe that taxpayers can be subjected to employment discrimination by religious institutions when applying for jobs financed by their own tax dollars?
4. In your testimony at your hearing for confirmation as Solicitor General, you stated that “religious organizations are different and that these differences are sometimes relevant for the purposes of government funding.” How are religious organizations different from secular organizations for First Amendment purposes? What limits does the Establishment Clause place on government funding that flows to faith-based organizations? In what other ways does the special nature of religious institutions call for different treatment under the Constitution?
10. In a memo dated May 20, 1999, you stated you were the “biggest fan of RFRA” in the White House. Please explain what you meant by this statement. Do you agree with the Court’s ruling in City of Boerne v. Flores 521 U.S. 507 (1997)? Also, please expound on your views regarding RFRA as applied to the federal government.
Americans United hasn’t outright opposed her nomination but they have the same kinds of questions:
The Rev. Barry W. Lynn, Americans United executive director, said he hopes the committee accepts its responsibility to question Kagan on her church-state perspective.
“It is imperative,” said Lynn, “that senators ask Kagan about her stance on religious liberty. We have carefully researched her record, and there are issues that raise concern. I think she should have the opportunity to clarify exactly what her views are.
“Religious liberty should not be used as a sword to override civil rights laws that protect all Americans,” Lynn continued, “and the government should not use taxpayer dollars to fund religion. That’s what the Constitution mandates, and I hope Kagan shares that perspective.”
Ditto with the Center for Inquiry.
Ditto with the American Humanist Association.
For some questions, it should be easy to just clarify what she meant. But for others, it’s very likely that Kagan will find a way to avoid them altogether. All she has to say is that a similar case may come her way in the future so she can’t pass judgment right now. And we’ll learn nothing. And she’ll be confirmed.
We just have to hope she’ll make the right decisions in the future.
It’s not a comforting thought, but I hold out hope that she advocates church/state separation and there are good explanations for her past actions.