On Religious Liberty, What Would Kagan Do?

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On religious liberty, what would Kagan do?


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Enlarge By Jack Gruber, USA TODAY



Testimony: "You are a part of this country, no matter what your religion is," Elena Kagan says.





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By Richard W. Garnett

To no one's surprise, Solicitor General Elena Kagan displayed intelligence and charm during the hearings in the Senate Judiciary Committee on her nomination to the Supreme Court. In addition, and also as expected, she avoided with impressive discipline sharing specific answers to senators' questions about the Constitution and the judicial role.

She did, however, provide, a few clues. In her opening statement, Kagan said that the court "has the responsibility of ensuring that our government never oversteps its proper bounds or violates the rights of individuals," but "must also recognize the limits on itself and respect the choices made by the American people." A justice, she said, must be a vigilant "trustee" of the "blessings of liberty," but also "properly deferential to the decisions of the American people and their elected representatives."



Among our most cherished "blessings of liberty" is the freedom of religion, our "first freedom." In the words of James Madison, the "father of the Constitution," America's experiment in religious liberty has brought "lustre to our country."



What, in Kagan's view, is the role of the court in this experiment? When it comes to questions of religious liberty and church-state relations, does she think a justice should show vigilance or deference?



Three cases to consider



The court decided two cases presenting such questions this past term, and a third is on the docket for next year. How would a Justice Kagan vote, or have voted, in these disputes? Justice John Paul Stevens was consistently wary, even critical, of religion's public role and influence. Are there reasons, given her Senate testimony, to hope for better from his replacement?



Consider the decision in Salazar v. Buono, which involved a retired Park Service employee's challenge to a war-memorial cross deep in the desert of the Mojave National Preserve. The case presented a variety of tricky procedural and technical questions, but at its heart was a straightforward one: Did this tribute to our fallen soldiers unconstitutionally express the government's "endorsement" of religion? Or was it instead — in Justice Anthony Kennedy's opinion for the majority — a permissible "public acknowledgment of religion's role in society"?



In another recent ruling, Christian Legal Society v. Martinez, a bare majority upheld a public law school's rule requiring official student groups, including religious groups, to accept "all comers" as members and leaders. Joined by Justice Kennedy, the court's liberal bloc rejected the argument that the rule undermined the legal society's ability to determine its own character and message — that is, to be distinctively Christian — and concluded that the requirement encourages "tolerance, cooperation, and learning among students" while re-enforcing California's disapproval of "discrimination."



Finally, the justices will consider next year whether Arizona's tuition-tax-credit law violates the Establishment Clause. This innovative policy provides a credit to taxpayers who contribute their own money to scholarship funds which, in turn, help children attend private and religious schools. Flying in the face of Supreme Court precedent upholding such programs, a lower federal court concluded that the Arizona program illegally "advances" religion.



What does Kagan's embrace of both judicial responsibility and restraint tell us about how she would have approached, or will approach, such cases? We know that she will, in general, be a reliably "liberal" or "progressive" voice on the court, but will she follow in Justice Stevens' footsteps when it comes to religious liberty?



As she told the Judiciary Committee, the First Amendment ensures that religion "never functions as a way to put people, because of their religious belief or because of their religious practice, at some disadvantage with respect to any of the rights of American citizenship." "You are a part of this country," she insisted, "no matter what your religion is." She was right. Our Constitution protects religious liberty and welcomes religion in public life, but the criteria for membership in our political community are secular. Clearly, courts have a role to play in policing these criteria and making sure that "rights of American citizenship" are never made to depend on religious professions or practices.



But what is that role, and how should it be exercised? The ability of unelected judges to identify those government actions that actually "establish" religion is limited, and so is their authority to second-guess others' policy decisions. It is not just the responsibility of judges, but also of legislators, public officials and voters, to be good stewards of our "blessings of liberty" and to guard against political exclusions on religious grounds.



The judicial tea leaves



So, what about the Buono case and the question of religious symbols on public property? An appropriately modest and "deferential" justice — that is, a justice of the kind that Kagan told the senators she would be — should humbly appreciate the fact that such symbols rarely have one clear meaning and do not necessarily send a message of exclusion. Yes, a cross is a religious symbol, and no one should pretend otherwise. However, reasonable people can disagree about what, in context, such a symbol is saying. Thus, Kagan — who said that courts should be inclined to "respect the choices made by the ... people" — should allow monuments like the longstanding memorial in the Mojave to stand.



In the Christian Legal Society case, by contrast, the court should not have deferred to the law-school's "all comers" rule. True, the policy might seem, at first glance, to promote the inclusive political community that Kagan endorsed. In fact, though, it excludes from the law school's common life groups with distinctive identities and penalizes the view that members' beliefs matter to the group's shared purpose. A justice committed to making sure that religion is not used to put people at a "disadvantage with respect to any of the rights of American citizenship" should have joined the court's "conservatives" and vindicated the Society's First Amendment rights.



Looking ahead to next year's tuition-tax-credit case, appropriate judicial deference to Arizona's education-reform policy is precisely the way to vindicate Kagan's understanding of the First Amendment's purpose. To exclude religious schools from the program would not only hamstring efforts to enhance educational opportunities, it would also send a clear but unseemly message that religious schools are somehow unworthy of participating in the community's shared project.



History has shown, to several presidents' regret, that Supreme Court justices do not always vote in accord with what Supreme Court nominees said. But if Kagan adheres in religious-freedom cases to her endorsement of judicial modesty combined with an appreciation for our "first freedom," it will serve her legacy — and our Constitution — well.



Richard W. Garnett is professor of law and associate dean at Notre Dame Law School.