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Kagan: church-state cases need latitude


WASHINGTON (BP)–Without saying how she would rule on any specific church-state case, Supreme Court nominee Elena Kagan said Wednesday that governments should have some freedom “to make religious accommodations” in matters involving the Constitution’s Establishment Clause.

It was the first church-state question posed by Senate Judiciary Committee members to Kagan, who if confirmed would replace John Paul Stevens, the retiring justice who nearly always voted with the liberal bloc and against local and state governments in such church-state matters as school prayer, Ten Commandments displays and school vouchers.

The questioning of Kagan was scheduled to conclude Tuesday.

“What the court has said with respect to this issue — and there seems to be great virtue to this approach — is that … there needs to be some play in the joints,” Kagan said in responding to a question about the Establishment Clause from Sen. Dianne Feinstein, D.-Calif. “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.

“That’s not to say how any particular case should come out, because sometimes the state goes too far, but in general there needs to be a little bit of play in the joints in order to prevent the state from sort of not being able to do anything, from being hamstrung in this area.”

Social conservatives are watching for clues as to whether Kagan will be a consistent social liberal vote — as was Stevens — or whether she will occasionally depart from the liberal side. Like most of her testimony, her answer to Feinstein’s question could be interpreted several ways.

The First Amendment reads, in part, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof …” The first part of the amendment is referred to as the Establishment Clause, the second part the Free Exercise Clause.

“What they’re both designed to do is to ensure that you have full rights as an American citizen … no matter what your religion is,” Kagan said. “And to ensure that religion 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.”

Kagan noted that different justices have used various “tests” to determine if a law violates the Establishment Clause. The most well-known test is often called the Lemon test, established by the Supreme Court in 1971. Under Lemon, for a challenged law to be constitutional it must have a secular purpose, not promote or inhibit religion and not entangle government excessively with religion. But Kagan said the Supreme Court often does not rely on the Lemon test and that other justices, Stephen Breyer among them, have promoted their own tests.

“Sometimes one test might seem the appropriate way to analyze the problem, and sometime another,” she said. “It’s very hard to say in the abstract which is appropriate.”
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Michael Foust is an assistant editor of Baptist Press.

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  • Michael Foust