Does Elena Kagan Believe Religious Freedom Trumps Discrimination Laws Protecting Gay Americans?
Michelangleo Signorile brings to our attention a post by Gay City News' Duncan Osborne looking at a 1996 memo written by then Associate White House Counsel Elena Kagan when she worked for the Clinton administration. The memo urged Clinton to side with religious conservatives in a case dealing with a landlord's objection to renting to an unmarried couple, because it went against his religious beliefs.
Wrote Kagan in the memo: “The plurality’s reasoning seems to me quite outrageous almost as if a court were to hold that a state law does not impose a substantial burden on religion because the complainant is free to move to another state...[G]iven the importance of this issue to the President and the danger this decision poses to [the Religious Freedom Restoration Act’s] guarantee of religious freedom in the State of California, I think there is an argument to be made for urging the Court to review and reverse the decision.”
Writes Osborne: "The memo, in which she is clearly expressing her own views, was sent to Jack Quinn, then the White House counsel, and Kathy Wallman, Quinn’s deputy counsel. Kagan, currently the solicitor general, authored it after Steve McFarlane, then the legal director at the Christian Legal Society, called her to say that a group of religious organizations would ask the court to review and overturn the California decision. That application was denied in 1997. Joining the society were the Church of Jesus Christ of Latter Day Saints, commonly known as the Mormon church, the National Association of Evangelicals, the Southern Baptist Convention as well as a coalition of Baptist organizations, the National Council of the Churches of Christ, and the American Jewish Congress."
Osborne adds: "For lesbian, transgender, bisexual and gay Americans, Kagan’s position is not academic. Religious conservatives have argued that their beliefs should allow them to ignore anti-discrimination laws protecting the queer community."
He notes that the Supreme Court struck down the Religious Freedom Restoration Act by a vote of 6-3 in 1997.
Writes Signorile: "It's imperative that senators ask Kagan specifically about this case and whether or not she still agrees with the sentiments of her '96 memo and what they meant for anti-discrimination laws. And LGBT advocacy groups in Washington had better push them to do so, as well as demand answers from the White House and Kagan about her views on religious freedom and laws protecting gay, lesbian bisexual and transgender Americans."
Kagan in 1996: Religion Trumps Discrimination Laws [herd and scene]
Does Elena Kagan Support Laws Protecting LGBT Americans? [signorile]
This is disgusting! Not only does Kagan betray the interests of the LGBT community, she shows absolutely no regard for the separation of Church and State. We CANNOT have a SC Justice who believes in the right of the religious right to enforce their bigotry in housing and hiring practices!
Posted by: candideinnc | Jun 14, 2010 8:31:39 AM
We don't HAVE any LGBT groups in Washington anymore.
All we have are gay mouthpieces for the Obama administration.
Posted by: SkepticalCicada | Jun 14, 2010 8:46:24 AM
Actually, the Constitution absolutely protects your religious views above our sexual orientation. My co-poster above finds her view disgusting but there is nothing that directly protects gays in the Constitution. We are only protected by the general belief in society that we should protect gays as we represent a significant part of the population. Gays are probably bigger than the Jewish population however our Founding Fathers did not put anything in our Bill of Rights that provides protection to people based on their sexual proclivities.
Even the latter changes to the bill of rights protects many variations in the human condition but does not include who you sleep with or partner with.
I would be disturbed if she had said the reverse; but her statement as is; is right on. Don't like it; then push for an amendment change. Good luck with that.
Posted by: Jason | Jun 14, 2010 8:51:52 AM
I wish I had read the whole article before I commented on the title. This issue is more than religion; it has a basic property rights issue attached. As a Libertarian; I think that all business owners and property owners have the right to refuse business based on any reason they deem. If they don't like your hair color then; as private business owners; they have the right to tell you to hit the road.
Currently, I can refuse your admittance based on race, religion, sex etc as long as I charge a fee for membership.
Keep in mind, I don't subscribe to these views but subscribe to your right to be a moron and control your property. Liberty and Freedom includes the right to be a racist, homophobe, anti-Semite and generally a jerk.
Posted by: Jason | Jun 14, 2010 9:30:53 AM
What's the old saying? A libertarian is a rich kid who's never been arrested or gotten laid. That's the whole point of the Civil Rights Act: that hotel keepers cannot keep Negroes off their private property. Grow up!
Kagen's memo is from 15 years ago. A lot has changed. Laws can protect individuals from discrimination even by churches even when they involve religious institutions. For example, a contract with a church group to administer or run a summer camp at a public park could require that the church group follow the states non-discrimination laws.
I just can't believe that when our President's have the entire state apparatus at their fingertips they wind up picking personal acquaintances for jobs like Supreme Court Justice. Bush picked his personal lawyer -- what was her name. Heidi Metzger? and now Kagan. Are there really so few women of prominence in the law?
Posted by: Roland | Jun 14, 2010 10:01:28 AM
Do you think that she believes these same protections be there for Wiccans?
Posted by: Mike in the Tundra | Jun 14, 2010 10:15:21 AM
Jason, your side lost the Civil War.
Posted by: Chris | Jun 14, 2010 10:27:15 AM
If Kagan was "too" pro-gay, Obama would never have nominated her.
Posted by: jomicur | Jun 14, 2010 10:54:12 AM
She was writing a memo in her capacity as Associate White House counsel:
"“[G]iven the importance of this issue to the President and the danger this decision poses to [the Religious Freedom Restoration Act’s] guarantee of religious freedom in the State of California, I think there is an argument to be made for urging the Court to review and reverse the decision.”
It was a political calculation to support her boss. Do not confuse that with her personal views.
She was just doing her job which was to protect Clnton.
And it was almost 15 years ago.
Unclutch, ladies.
Posted by: Rob G. | Jun 14, 2010 10:54:34 AM
It comes down to the perceived balance between the 1st and 4th amendments on the one hand and the 14th on the other. The first two are very important when protecting minority religious views (think Jewish and Mormon). The relevant law was struck down.
Posted by: anon | Jun 14, 2010 11:24:41 AM
Chris,
Lets see what happens in November before we put the nails in liberty and freedom's coffin.
And you are right; my side did lose; unfortunately. Slavery would have ended regardless. It was horrible that we had to lose multiple generations and half the U.S. economy to solve the issue. If we would have had a President like Jackson in 1858 it would not have come to war.
Again the issue was over property rights. The Northern banks were holding the South to their loans backed by their human assets while the country was asking the South to relinquish close to $3 trillion(today's dollars)in assets. England solved this issue by reimbursing companies and owners for the value of their assets. Sounds cold but that was the real issue. It was over money; period. It wasn't b/c the south hated black people. A majority of the wealth in the U.S. was based on human assets and the rich and powerful weren't going to just give up $3 trillion in assets.
The North benefited greatly from the war. If you look at the top ten richest people over 2,000 years; including kings, queens, emperors etc; many of the top 10 were all from the north and Born within 3 years in the 1830s. Good timing if you were an ambitious industrialist in the Northern U.S; the destruction of the South worked out pretty good for them.
Posted by: Jason | Jun 14, 2010 11:29:39 AM
I've always found the quote that "history is bunk" profound. Who was it who said that?
When you have a black in the White House it seems Rand Paul can get elected.
Sorry if my English is not that good.
Posted by: Roland | Jun 14, 2010 12:05:59 PM
Some of these comments frighten me. Has no one followed the Prop. 8 trial?
A gay person cannot help where he is born. This may actually affect where he wants, or even needs, to live.
I am sure there are rather large areas (cities, counties) that harbor anti-gay beliefs, including in housing. A poor gay man, unaccepted by his community, should have to move to another state??? No person, state, law, etc, religious or not, may deny a person's right to merely exist.
The libertarian's argument seems to call for necessary government owned housing everywhere just to make sure everyone would have a place to live.
Posted by: James | Jun 14, 2010 12:35:07 PM
The libertarian argument always involves something enormously impractical. Its an ideology unsuited to urban life, and to be honest this Ayn Rand hokum makes me want to vomit.
Posted by: Roland | Jun 14, 2010 12:53:05 PM
This woman is trouble! She leans conservative, and there's evidence that she's a closet case, too. When is the so-called activist community going to get their act together and put some real effort into opposing her nomination?
Posted by: Stuffed Animal | Jun 14, 2010 1:14:53 PM
Kagan is not a libertarian. She's a social conservative. This should not be surprising to anyone who has followed the Obama administration. In his desperate attempt to be liked by Republicans (who he'll certainly be dealing with more once they take over Congress again) he is willing to throw anyone (his own pastor for example) under the bus. I hate to say it, but McCain would have been a better president, and would have given Democrats someone to fight against.
Posted by: Randy | Jun 14, 2010 1:36:18 PM
I think Jason's comments are the first I've ever seen that disparage Abraham Lincoln. I'm dumbfounded. As for Kagan, I sure HOPE her views have changed in the 14 intervening years.
Posted by: Rodney | Jun 14, 2010 1:43:52 PM
Jason is making the same argument as Rand Paul, who has been taken to task over and over again in the media for it. This issue has long been settled. Ideologically, the argument that businesses who engage in discriminatory practices will simply lose business because society will correct for it naturally works, but practically, it simply doesn't work that way. In a civilized society, these protections are necessary. The landlord has every opportunity to use his property how he wants, but he cannot engage in BUSINESS unless he follows the laws of business. In this country, business is conducted in a non-discriminatory manner.
Posted by: John K. | Jun 14, 2010 2:27:49 PM
"England solved this issue by reimbursing companies and owners for the value of their assets."
Those "assets" being people. Ruthlessly enslaved people, mind you. For whom the only true payment should have been a long, painful death in the worst prisons imaginable for those slaveholders and the utter destruction of their family names with the salting of the earth afterward, were their any true justice in the world. Not only had they no right to complain about not being compensated for those "assets' as you charmingly put it, they should count themselves lucky they and their families didn't receive the full bill actually due to them. Like all monsters, they passed a heap of that incredibly destructive payment due for their crimes on to their descendants and to the nation. In many ways, we're still paying for the crimes against humanity of those loathsome bastards. Trying to blame anyone else, particularly with the risable notion that they simply weren't "compensated" enough, is vile insanity. Boo f*ckin' hoo.
"It wasn't b/c the south hated black people."
We only enslave those we love?
Posted by: bobbyjoe | Jun 14, 2010 4:41:40 PM
"I hate to say it, but McCain would have been a better president, and would have given Democrats someone to fight against."
Huh? Giving the Democrats someone to fight against (something they suck at) would benefit us how? And you honestly think McCain would have nominated someone more socially liberal than Kagan to the Supreme Court? (Not to mention that DADT repeal etc. would not even be on the table.) What are you smoking? The fact is no one knows much about Kagan's views, so branding her a "social conservative" is, at best, preliminary, hence the need for questions. More likely, Kagan is a safe choice by Obama, a mostly blank slate, not conservative but not liberal enough for Republicans to pull a filibuster.
The libertarian argument is a red herring since most of the people in the US who claim to be libertarians, Rand Paul included, are libertarians only when it suits their personal prejudices, and true libertarians will never make it into the White House or onto the Supreme Court. They wouldn't protect the religious enough to suit the American people, for one thing. And they're widely viewed as wingnuts for another.
I hope the confirmation process will reveal some of Kagan's actual thinking--as opposed to wild fantasies about it--but, given how it's become a lesson in eloquently revealing nothing, we probably won't know her true views until she starts ruling.
Posted by: Ernie | Jun 14, 2010 4:49:35 PM
One of things that confuses people is that current non-discrimination 'law' is based on the notion of a 'remedy' for past discrimination. Remedies in legal terms are different from rulings. A ruling is 'guilty' a remedy is '15 years in the pen'. Judges have wide latitude re remedies. Much of what we think of as rulings in discrimination cases are actually rational basis test remedies for past wrongs, which is how we skirt the 4th amendment. The SC put a 25 year clock on much of this a while back, so we'll see how it ends up in several years.
Posted by: anon | Jun 14, 2010 6:10:44 PM
The Alternatives to Marriage Project has launched a campaign to win clarification from Kagan, plus amendment of the Federal Fair Housing Act. Join us today!
http://org2.democracyinaction.org/o/5055/p/dia/action/public/?action_KEY=3391
Posted by: Nicky | Jun 16, 2010 9:25:12 AM
Rob G, she was not defending her boss. She was arguing internally that the Clinton administration should take a position on the Ninth Circuit's ruling which it did not end up taking. Read up a little more on this.
Posted by: Jim | Jun 19, 2010 4:23:38 AM
Hmm... this might be nitpicking words, and giving her too much the benefit of the doubt but she did say "The plurality’s -reasoning- seems to me quite outrageous..." not really its ruling.
Which would reminds me of my own take on Roe vs. Wade, I'm vehemently pro-choice but thought the basis of the ruling...ie it's reasoning (survivability) was just stupid and a much better argument could have been made (the development of consciousness) establishing a much better precedent to work with in the future.
Posted by: Daws | Jun 19, 2010 6:02:03 AM