The Baptist Joint Committee's newest issue of Report From the Capital is now online. There is lots of great stuff, including analysis of the Supreme Court's CLS v. Martinez decision, a recap of Religious Liberty Day and an overview by yours truly of the church-state moments in Elena Kagan's confirmation hearing before the Senate Judiciary Committee last month.
Here's my piece on the hearing, below.
For those of us watching closely for church-state discussion, the big moment in Supreme Court nominee Elena Kagan’s confirmation hearing finally arrived midway through the third day, on June 30, when Sen. Dianne Feinstein, D-Calif., quizzed the nominee on the interaction between the two bedrock religious freedom principles in the Constitution — the Free Exercise and Establishment clauses.
By then, of course, I was a dishevelled mess. After beginning the C-SPAN marathon with all of the excited hopefulness of a soccer fan watching the World Cup, two and a half days of wall-to-wall congressional hearings with no pointed questions on religious liberty had left me bleary-eyed and over-caffeinated.
There was certainly reason to be on alert for Kagan’s answers. Reading the tea leaves at one of these hearings (a wise woman once called them “vapid” and “hollow”) is difficult enough when the nominee is a judge with a record of decisions to examine. In that case, we might at least see how she has applied the law to real-life conflicts in the past. Kagan’s experience, though, was not on the bench but in the classroom and in the White House as a lawyer and policy adviser. Her statements to the Judiciary Committee may be our only chance to gauge her church-state views.
Once we finally got a meaty question and the dust settled on her confirmation hearings, did we learn anything instructive about her attitude to church-state problems and her philosophy of interpreting the laws protecting our religious liberty?
I took away three things that struck me as substantive — not overly specific of course, but things that, politically and legally speaking, she did not have to say, and that might reveal something of her approach.
First, Kagan emphasized that government should have some breathing room, discussing the need to allow “play in the joints” between protecting religious exercise on one hand and assuring no establishment of religion by the state on the other. Specifically, she said, “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.”
This is an important recognition on Kagan’s part of the constitutional rock and a hard place sometimes facing government officials. We see this played out every year with Christmas displays, for example. City leaders are sued for allowing religious displays, and they are sued for disallowing them. That is not to say how she might rule in a particular case, but — perhaps reflecting her experience in the Clinton White House working on legislative issues including religious expression in the workplace — Kagan’s statement here may indicate at least an understanding of church-state dilemmas from the perspective of policy makers.
Second, she was very clear on one thing: interpreting the Establishment Clause is a difficult challenge. In contemplating which legal test should be applied when evaluating government action, she said to Sen. Feinstein it was “a hard, hard question.” She showed a keen knowledge of the many approaches various justices have taken recently in this regard, and seemed to indicate that there may be a time for all of them, given the “many varied contexts” in which these cases arise.
Kagan’s response here leaves the impression that she is not likely to take a uniform approach to Establishment Clause cases. More importantly, her emphasis of the difficulty of church-state conflicts leaves me strangely comforted. Optimistically, I take it as a sign of just how seriously she takes the concerns on both sides in such disputes.
I was reminded of her statement elsewhere that working on the religious expression in the workplace guidelines was the “most challenging” project she had undertaken in government. If confirmed, her job will be different as a justice, but the task of reckoning with the passionate interests of church-state debate requires no less understanding.
Third, Kagan emphasized the role of precedent. She said quite directly that in interpreting the First Amendment, judicial precedent is typically “more important” than the intent of the Founders, adding, “the court very rarely actually says…’what did the Framers think about this?’” While she didn’t mention church-state law specifically in this discussion — using Free Speech as an example instead — religious freedom is certainly a part of the First Amendment.
The biggest challenge church-state advocates may face in potential Supreme Court Associate Justice Elena Kagan may simply be the loss of Associate Justice John Paul Stevens, whom she could replace. A fierce champion of the Establishment Clause, Justice Stevens was a dependable protector of church-state separation. It remains to be seen whether the same can be said about her, of course. In her confirmation hearing, Kagan did, however, demonstrate a thorough knowledge of church-state law, while acknowledging the difficulty of adjudicating its disputes. She vowed to be “very practical” in searching for the method that will yield the “best answer on the law” for each individual case, rejecting a one-size-fits-all approach to constitutional interpretation. Stay tuned!