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Edited on Mon May-10-10 05:00 PM by usregimechange
First, as many here are aware, I have been predominately pro-Kagan. I wrote the day before she was nominated "Evidence mounts, Kagan would fit in nicely on the liberal left of the court." The post can be found here: http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=389x8300335This gives me some pause on my previous conclusion... BackgroundIn a memorandum to Justice Thurgood Marshall Kagan suggested that the Adolescent Family Life Act violated the Establishment Clause: “I think the got the case right. 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. The government is of course right that religious organizations are different and that these differences are sometimes relevant for the purposes of government funding. The government, for example, may give educational subsidies to religious universities, but not to parochial schools. But when the government funding is to be used for projects so close to the central concerns of religion, all religious organizations should be off limits.”
Later during her hearing for Solicitor General she called this "the dumbest thing I’ve ever read."
In her written response to members of the Judiciary Committee she elaborated:
"Answer: I indeed believe that my 22-year-old analysis, written for Justice Marshall, was deeply mistaken. It seems now utterly wrong to me to say that religious organizations generally should be precluded from receiving funds for providing the kinds of services contemplated by the Adolescent Family Life Act. I instead agree with the Bowen Court’s statement that “he facially neutral projects authorized by the AFLA-including pregnancy testing, adoption counseling and referral services, prenatal and postnatal care, educational services, residential care, child care, consumer education, etc.- are not themselves ‘specifically religious activities,’ and they are not converted into such activities by the fact that they are carried out by organizations with religious affiliations.” As that Court recognized, the use of a grant in a particular way by a particular religious organization might constitute a violation of the Establishment Clause – for example, if the organization used the grant to fund what the Court called “specifically religious activity.” But I think it incorrect (or, as I more colorfully said at the hearing, “the dumbest thing I ever heard”) essentially to presume that a religious organization will use a grant of this kind in an impermissible manner."
Concern
In BOWEN V. KENDRICK, 487 U. S. 589 (1988), the Supreme Court in a 5-4 decision held that "the Act, on its face, does not violate the Establishment Clause." The 5 Justices whom she later agreed with were Rehnquist, White, O-Connor, Scalia, and Kennedy. Her former boss Thurgood Marshall along with the person she is replacing Justice Stevens as well as Blackmun and Brennan dissented.
Blackmun wrote the dissent and summarized his views here:
"As the record developed thus far in this litigation makes all too clear, federal tax dollars appropriated for AFLA purposes have been used, with Government approval, to support religious teaching. Today the majority upholds the facial validity of this statute and remands the action to the District Court for further proceedings concerning appellees' challenge to the manner in which the statute has been applied. Because I am firmly convinced that our cases require invalidating this statutory scheme, I dissent."
Others are concerned as well
Americans United for Separation of Church and State today called on the Senate Judiciary Committee to question Supreme Court nominee Elena Kagan on her views concerning a range of church-state issues.
President Barack Obama today announced the nomination of Kagan, currently U.S. solicitor general, to the high court. Since Kagan has not been a judge, she lacks a clear record on church-state separation issues...
In 1987, while serving as a clerk for Justice Thurgood Marshall, Kagan wrote a memo adopting a separationist viewpoint and stating that religious groups should not be able to receive public funding for certain secular activities. During her confirmation hearings for solicitor general, however, she distanced herself from that analysis, calling it “deeply mistaken” and “utterly wrong.”
http://www.au.org/media/press-releases/archives/2010/05/senate-committee-should.html |
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