Melissa Rogers makes the case that confirmation of Elena Kagan to the Supreme Court could be a victory for the free exercise of religion. Noting that current Justices as divergent in their views as Stevens and Scalia both agree that government has the right to burden religious exercise with a neutrally applied law, so long as it is not targeting religion, Rogers asserts:
In the document dumps from the presidential library of Bill Clinton, there’s some suggestion that Elena Kagan thinks about these issues differently. If Kagan is elevated to the Supreme Court, and she does part ways with Justices Scalia and Stevens on these matters, it could mark the first time a critic of the 1990 Smith decision and its weak reading of the Free Exercise Clause replaces a supporter of that decision. This would move the Court closer to reinvigorating the Free Exercise Clause, and thus closer to providing additional protection for the peaceful practice of all faiths.
Of course, this deserved celebration of Kagan's support for free exercise tells us nothing about her Establishment Clause views, which I hope are substantively addressed in the hearings that begin next week. Religious liberty in America only works properly when both religion clauses are strong – when free exercise is protected and the government is kept from promoting or favoring religion.
For all of the advances we have seen in the area of free exercise over the last 20 years (the time since the Employment Division v Smith decision she cites), there has been a steady erosion of the Establishment Clause at the same time. Retiring Justice Stevens has been an Establishment Clause champion. It remains to be seen whether Kagan would be as well.
You can read the BJC's analysis of Kagan's church-state record here.
