Conservative Views: Obama’s SG Pick Elena Kagan—Establishment Clause

Obama’s SG Pick Elena Kagan—Establishment Clause. By Ed Whelan
Bench Memos/NRO, Saturday, February 07, 2009

Last month, I discussed (here and here) SG nominee Elena Kagan’s vigorous opposition to the Solomon Amendment and the extremist rhetoric (“a profound wrong—a moral injustice of the first order”) she deployed against the Don’t Ask, Don’t Tell law.

I’d now like to call attention to a memo (dated October 22, 1987) that Kagan wrote as a law clerk to Justice Thurgood Marshall in the case of Bowen v. Kendrick. As Kagan’s memo explains, at issue in that case was the Adolescent Family Life Act, which authorized federal funds to support demonstration projects designed to discourage adolescent pregnancy and to provide care for pregnant adolescents. AFLA specifically contemplated that “religious organizations” could receive funds under the Act. The district court ruled that the inclusion of religious organizations violated the Establishment Clause.

In her memo to Justice Marshall, Kagan agrees with the district court’s Establishment Clause ruling and adds this remarkable explanation (underlining in original; italics added):

The funding here is to be used to support projects designed to discourage
adolescent pregnancy and to provide care for pregnant adolescents. It
would be difficult for any religious organization to participate in such
projects without injecting some kind of religious teaching.… [W]hen the
government funding is to be used for projects so close to the central concerns
of religion, all religious organizations should be off limits.

The italicized sentences reflect a bizarre understanding of religious organizations. How is it that it “would be difficult for any religious organization to participate in [projects designed to discourage adolescent pregnancy and to provide care for pregnant adolescents] without injecting some kind of religious teaching”? Kagan offers no explanation. Either she had a remarkably narrow understanding of how many religious organizations operate, or she had a remarkably expansive view of what counts as “religious teaching”.

It’s also strange that Kagan, in the context of Establishment Clause concerns, would label projects designed to discourage adolescent pregnancy and to provide care for pregnant adolescents “so close to the central concerns of religion”. How do such projects in the abstract (apart from any particular concerns that could arise in their application) remotely raise genuine Establishment Clause concerns?

In (very limited) defense of Kagan, the aggressive and reflexive secularism that her comments reflect was part of a liberal orthodoxy on the Establishment Clause that had much greater currency in the mid-1980s than it does now.

President Obama purports to have grand plans for his faith-based office. If Kagan’s current Establishment Clause views are anything like they were two decades ago, they ought to set off alarm bells for those who recognize that the Establishment Clause should not be misused to discriminate against religious organizations.