this is a major problem with Kagan

[dsc]

http://herdandscene.blogspot.com/2010/06/kagan-in-1996-religion-trumps.html

When she worked in the White House in 1996, Elena Kagan argued that the Clinton administration should join religious conservatives in asking the US Supreme Court to review and reverse a California Supreme Court ruling that found that a landlord’s religious objections to renting to an unmarried couple were trumped by that state’s anti-discrimination law.



“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,” wrote Kagan, who has been nominated to serve on the US Supreme Court by President Barack Obama, in an August 4, 1996 memo. “iven the importance of this issue to the President and the danger this decision poses to 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.”



The act was passed in 1993 in response to a 1990 US Supreme Court ruling that, the act claimed, “eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion.” The act was meant to strike “sensible balances between religious liberty and competing prior governmental interests.”



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 McFarland, 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.

end of quote

quite a lot more at link

Letting there be a religious exemption to LGBT civil rights laws would negate them. There isn't any other reason to discriminate against gays, it is all religiously based discrimination. Kagan, and no one else, would dream argue that there should be a religious exemption to civil rights laws based on race (even though more than a few religions did indeed have racial discrimination as a major tenant). But it should be noted that nowhere in the first amendment is there some sort of racial exception to the protections offered by that amendment. There is no principled disinction between letting a homophobic bigot site religion in refusing to rent to a gay couple and allowing a racist bigot to site religion in refusing to rent to an interracial one. I hope someone asks her about this.

[Vattel]

1. we don't know enough about her

and some of what we know looks bad.

[closeupready]

12. I do have to agree with you. I wanted to like her, but

I have issues with all whole lot of her views (or apparent views).

[geek tragedy]

2. Ick. nt

[dsc]

3. kick

[Unvanguard]

4. The reporting here is incomplete.

See my post here on an earlier thread on this topic. In essence, if you read the memo, Kagan's problem was not with the Court's conclusion but rather with its standard, and her objection was based not on the First Amendment but rather on the Religious Freedom Protection Act (which has since been overturned with respect to the states.) The amicus curiae brief in question was not signed only by "conservative" religious organizations, but also by liberal ones who were disturbed by the weakening of protections for religious freedom even though they thought the anti-discrimination law actually could meet the "compelling interest" test. (And the case that it could do so with respect to gays, about whom there is extensive documentation of discrimination, is stronger than the case that it could do so with respect to marital status.)

[dsc]

5. I still disagree with her

There is no way on earth that it is any more of a burden on her beliefs to hire a person who is part of an unmarried couple (and thus pay their full rent) and providing a home for them to live in. If she actually lived in the building then I would say it was a substantial burden but she is merely making money off a business transaction. She doesn't have to meet these people or even look at them.

[Unvanguard]

6. I don't want to be overly pedantic

because I understand where you are coming from, and as a matter of social policy I think you are right.

But having read the California Supreme Court opinions that were being appealed, the dispute between the plurality opinion (that Kagan is criticizing) and the dissent is about a separate issue than the one you point out. Effectively, according to the standard the Religious Freedom Restoration Act made law, as long as someone's religious belief is a matter of sincere conviction, it is deferred to. So the issue is not "Does it make sense for her to view renting to the unmarried couple as a sin?"--after all, part of the point of religious freedom is to protect otherwise-idiosyncratic behavior that is a matter of religious conscience--but rather, "Would refraining from the religiously-proscribed behavior impose a substantial burden on her?" And the answer is less clear there. This was not just a business she owned from far away, it was one that she was actively involved in managing, and it is not so ridiculous of Kagan to think that the plurality's opinion was too lenient on this point.

The better solution, I think, is to exempt anti-discrimination laws from conscience protections: there seems a fundamental difference to me between a personal expression of religious conscience and one that directly exercises power over others the way this kind of discriminatory policy does. But Kagan was undoubtedly right that such an explicit exemption would have been politically difficult, given that this issue is already the main argument against anti-discrimination protections for gay people.

In sum, I don't find this memo particularly worrisome, especially not in the context of her strongly-voiced opposition to Don't Ask Don't Tell.

[msanthrope]

8. You've written 2 excellent posts on the actual

Legal issue surrounding this memo.

I find that many anti-Kagan threads rely on articles that deliberately fail to state the details of the arguments that kagan makes.

This leads to great, shocking headlines but complaints of little substance. I think it an invaluable service to the DU community to take time to rectify the mistakes made by those who seek to muddy waters before the hearings.

Thank you.

[dsc]

9. If she is willing to carve out a judicially sanctioned exception to discrimination laws based on

religious beliefs then no civil rights laws would be safe if the rest of the court agrees with her. It seems that may well be what she believes, she may well not believe that as well, given the state of the reporting we really don't know, but she needs to be asked and if she isn't I am going to be very uneasy with her on the court. She has already stated that there is no 14th amendment implication in DOMA.

[Unvanguard]

10. Did she really say that about the Fourteenth Amendment and DOMA?

That's a whole lot more worrisome if true, not least because the issue will almost certainly go before the Court while she is on it. My Google searching turns up nothing though.

(She did say that there was no constitutional right to same-sex marriage, but there is a lot of ambiguity there as far as how that can be interpreted.)

[dsc]

13. she did use your construction but there really isn't alot of difference

if we have no right to marry then DOMA doesn't violate the 14th amendment as we would be different people (unmarried vs married) and not entitled to any of the rights marriage brings.

[Unvanguard]

14. Not necessarily.

DOMA is on shakier grounding for at least two reasons. First, it restricts not only recognition of marital status but also federal rights: it can't even claim to be a "separate but equal" arrangement. Second, DOMA denies recognition even to same-sex couples who are already legally-married, so it is not a question of the right to marriage so much as the right of the federal government to carve out a special exception to its general policy of recognizing all valid state marriages.

More importantly, though, like I suggested in my last post, her statement probably doesn't mean much of anything about her substantive legal views, especially because it was written in response to a question from someone who would have used a better answer against her. Tellingly, her response to part b of the question--which asks not whether there exists such a right (already), but "whether the federal Constitution should be read to confer a right to same-sex marriage"--is "I do not recall ever expressing an opinion on this question", which hardly makes sense if that is what she has just done, and which indicates that her intent was evasive. (Her statement is almost certainly a lie; it is incredible to believe that that's the case for a prominent legal academic, especially one who lived in Massachusetts.)

I'm inclined to think that Elena Kagan will almost certainly take broadly socially-liberal positions on the Court: she has served in two Democratic administrations and was appointed by a Democratic president, and liberal academics from places like Harvard tend so overwhelmingly toward certain opinions that it would be very strange if she were inclined to buy right-wing arguments against same-sex marriage. The lack of a clear record is less telling than it seems, because she was selected in part for that very reason; if somehow it were made clear that she supports a constitutional argument for same-sex marriage, that would give the Republicans an easy way to oppose her.

I could be wrong. You are certainly correct that it is worthy of further investigation; her confirmation hearings will touch on this topic, and it will be interesting to hear what she says.

[Unvanguard]

11. Duplicate. n/t

[VMI Dem]

7. Her work on welfare reform is a no go for me.

Centrists love her though.