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Stark Kagan Anti-Bias Views Emerge

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In Clinton administration, high court nominee said she’s "biggest fan” of religious opt-outs

Gay and civil liberties groups are asking members of the Senate Judiciary Committee to question Elena Kagan, a nominee for the US Supreme Court, about her views on religious liberty after memos and emails from her time in the Clinton administration suggested she may believe that religious beliefs trump anti-discrimination laws.

“We’re urging the committee to inquire into her current beliefs on that issue,” Michael Cole, a spokesman for the Human Rights Campaign, the nation’s largest gay lobby, wrote in an email.

Kagan served in the Clinton White House from 1995 through 1999, and the Clinton Library has released tens of thousands of documents from her time there since President Barack Obama nominated her on May 10 to replace Justice John Paul Stevens on the nation’s highest court.

In a 1996 memo, Kagan urged the Clinton administration to join religious conservatives in asking the US Supreme Court to review and reverse a California Supreme Court ruling finding that the state’s anti-discrimination law overcame a landlord’s religious objections to renting to an unmarried couple.

Calling the court’s decision “quite outrageous,” Kagan wrote “[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 landlord, who was represented by a pro bono attorney from the right-wing Concerned Women For America, refused to rent an apartment to the couple in 1987. The couple sued in state court, citing a California law that barred discrimination based on marital status. Lambda Legal, the gay rights law firm, filed a brief on behalf of the couple.

Following the 1996 ruling from California’s highest court, a lawyer representing a coalition that included groups that are still some of the most ardent opponents of the gay community contacted Kagan apparently seeking to have the Clinton administration join their effort to have the US Supreme Court take the case. The administration did not join that petition, and the court did not hear the case.

The 1993 federal Religious Freedom Restoration Act (RFRA), which was meant to strike “sensible balances between religious liberty and competing prior governmental interests,” was considered in a separate case by the US Supreme Court, and in 1997 the court held that RFRA could not apply to state and local laws, only federal law.

Two years later, Congress took up the Religious Liberty Protection Act (RLPA), which was meant to address the court’s objections in the 1997 case. Gay groups joined fair housing, disability, and civil rights groups seeking to amend the law to exempt discrimination laws from RLPA’s provisions. Kagan, who became the solicitor general in the Obama administration, acted as negotiator on behalf of the administration with different sides in the legislative battle.

“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 a 1999 memo circulated within the administration. “We’ll let you know as soon as it’s safe to go back in the water.”

In that memo, Kagan was advising then Vice President Al Gore to not take a position on the bill until that rapprochement was achieved. It never was. The bill passed the House in July of 1999, but never had a vote in the Senate.

“I’m the biggest fan of RFRA (now RLPA) in this building, but you should not take this advice right now,” Kagan wrote in the memo. “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.)”

The fact that Kagan apparently backed religious exemptions to discrimination laws disturbed HRC.

“State anti-discrimination laws that promote equality and address unequal treatment are critical to LGBT Americans, particularly in the absence of strong federal protections,” Cole wrote. “It’s troubling that Elena Kagan questioned the judgment of upholding this California statute and we urge the Senate Judiciary Committee to question Kagan’s current beliefs on the validity of state anti-discrimination statutes and religious liberty.”

On June 21, the American Civil Liberties Union (ACLU), which does not take a position on nominees, released a report that detailed Kagan’s views on various issues. That report was sent to Judiciary Committee members.

“We’re urging senators to explore all of these civil liberties, civil right issues,” said Christopher Anders, senior legislative counsel at the ACLU. In his view, the Kagan documents are unclear.

“Reading these emails on their own, there are lots of different ways you can interpret what she said,” Anders said.

Lambda Legal was still reviewing material on Kagan and would not comment until that process was finished.

Requests for comment from Vermont Democratic Senator Patrick Leahy, the Judiciary Committee chair, and New York Democrat Charles Schumer, a committee member, were not returned by press time.

Updated 5:17 pm, July 20, 2018
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