Despite knowing that religious freedom laws could invalidate state and local anti-discrimination statutes that protect bisexual, lesbian, transgender, and gay taxpayers, Elena Kagan, a nominee to the US Supreme Court, championed such laws in her later years in the Clinton administration.
“I’m the biggest fan of [the Religious Freedom Restoration Act] (now [the Religious Liberty Protection Act]) in this building, but you should not take this advice right now,” Kagan wrote in a May 20, 1999 memo to Ron Klain, then the chief of staff to Al Gore, the vice president. “You’ll have a gay/lesbian firestorm on your hands. (Alternatively, if you come out for a version of RFRA that has a civil rights carve-out, you’ll have a religious groups firestorm on your hands.)”
Kagan’s advice came in response to a memo by Bill Galston, a Gore advisor, that circulated among Gore’s staff and suggested the position he should take on the law.
“There is a new wrinkle, however,” Galston wrote in the May 19, 1999 memo. “I am told that some groups -- mainly gay and lesbian rights organizations -- have raised objections to RLPA on the grounds that it could enhance the ability of individuals citing religious convictions to discriminate against them and other minorities. For this reason, the ACLU has broken ranks and is demanding language in the bill specifying that religious free exercise claims cannot be used to justify discrimination.”
The US Supreme Court ruled in 1997 that the 1993 restoration act, which was meant to strike “sensible balances between religious liberty and competing prior governmental interests,” could apply to federal law, but not to state and local laws. The 1999 protection act, which passed the House in July of that year, but never had a vote in the Senate, was supposed to overcome the court’s concerns.
Clearly aware of the objections by gay groups, but still trying to get the law enacted, Kagan, currently the solicitor general, was negotiating with both sides.
“We had a meeting with the religious groups yesterday and are having a meeting with the gay groups Monday to see whether we can work out some kind of rapprochment (sp?),” she wrote in the May 20 memo. “We’ll let you know as soon as it’s safe to go back in the water.”
Roughly three weeks earlier, Kagan received an email from Edward W. Correia, special counsel for civil rights to President Bill Clinton, inviting her to a meeting on the protection act. That law, Correia wrote, “would create a religious free exercise defense to many state laws that are inconsistent with the religious beliefs or practices of individuals.”
While Clinton “strongly supported” the restoration act “and it was widely supported in Congress...some of the potential implications of the bill are now better understood,” Correia wrote. Charles Canady, a conservative Republican from Florida and the protection act’s sponsor, wanted to move the bill to a vote.
Correia wrote that the act “could provide a religious liberties defense to many state laws, including some civil rights laws, such as fair housing laws that prevent discrimination against gays and lesbians and unmarried persons. This result is not certain, but it is certainly possible, at least in some states. As a result, the gay community, supported by many civil rights groups, oppose RLPA as currently drafted. Last year, no Democrats on the House Constitution Subcommittee supported the bill after they heard from this community. Canady wants to move this bill quickly, and the Administration is going to have to decide how to respond.”
Kagan sent an email to a staffer saying of Correia’s meeting “please put this on my schedule.” The day before the House vote on the protection act, the Clinton administration issued a statement saying it “strongly supports” the law.
Kagan, who worked in the Clinton White House from 1995 to 1999, urged the administration in a 1996 memo to 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 noting “the danger this decision poses to RFRA’s guarantee of religious freedom in the State of California.”
When President Barack Obama nominated Kagan on May 10 to replace retiring Supreme Court Justice John Paul Stevens, gay groups, including the nation’s largest gay lobby, the Human Rights Campaign, Lambda Legal, the gay rights law firm, and the National Gay and Lesbian Task Force, generally welcomed her selection with HRC being particularly effusive in its praise of Kagan though the groups hedged their bets saying they looked forward to learning more about her during Senate hearings.