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. “[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.”
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.
The California case concerned a landlord, Evelyn Smith, who owned four rental units. Smith lived elsewhere. In 1987, she rented a unit to a heterosexual couple who told her they were married, but disclosed they were unmarried after the lease was signed. Citing her religious beliefs, Smith refused to let them move in and they sued claiming discrimination based on marital status under California’s Fair Employment and Housing Act. The case moved through the courts until the 1996 ruling from the state’s highest court. Lambda Legal, the gay rights law firm, filed a brief on behalf of the couple. Smith was represented, pro bono, by an attorney from Concerned Women For America, a rightwing group.
In her 1996 memo, Kagan said she was told that the Solicitor General, the office that handles government litigation before the US Supreme Court, was not joining the application.
“The deadline for filing is next week (though the SG's office can of course ask for an extension), so if we want the SG's office to reverse its decision, we will have to act very quickly,” Kagan wrote. Quinn’s handwritten response on the memo is indecipherable. It is not clear that the Clinton administration joined the petition.
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.
In 1999, Lambda Legal sued the North Coast Women's Care Medical Group on behalf of a lesbian who was denied services there by doctors who claimed their religious beliefs allowed that. The case was settled in 2009.
In 2008, the Bush administration issued a federal rule that could bar any healthcare facility that receives federal funds from firing or punishing an employee who cites “religious beliefs or moral convictions” and refuses to provide services to gay, lesbian, bisexual or transgendered patients or people with AIDS. That rule appears to have been reversed in 2009.
Gay groups praised Kagan’s nomination, but kept some of their powder dry saying they would review her record and looked forward to a thorough examination of it by the Senate.
UPDATE: In a 6-to-3 ruling, the US Supreme Court struck down the Religious Freedom Restoration Act in 1997.
The case concerned a suit brought against Boerne, Texas by the Roman Catholic Archbishop of San Antonio who applied for a permit to expand a church there. The permit was denied and the archbishoip sued citing the 1993 act. The Clinton administration and a broad coalition of civil and religious groups from the left and right supported the act.
The majority opinion illustrates the danger in Kagan’s position. First, the act solved a problem that did not exist.
“An instructive comparison may be drawn between RFRA and the Voting Rights Act of 1965,” the majority held. “In contrast to the record of widespread and persisting racial discrimination which confronted Congress and the Judiciary...RFRA's legislative record lacks examples of any instances of generally applicable laws passed because of religious bigotry in the past 40 years. Rather, the emphasis of the RFRA hearings was on laws like the one at issue that place incidental burdens on religion. It is difficult to maintain that such laws are based on animus or hostility to the burdened religious practices or that they indicate some widespread pattern of religious discrimination in this country.”
The law’s effect, potentially, was staggering.
“Its sweeping coverage ensures its intrusion at every level of government, displacing laws and prohibiting official actions of almost every description and regardless of subject matter,” the majority held. “Its restrictions apply to every government agency and official, and to all statutory or other law, whether adopted before or after its enactment. It has no termination date or termination mechanism. Any law is subject to challenge at any time by any individual who claims a substantial burden on his or her free exercise of religion. Such a claim will often be difficult to contest.”