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The Senate Committee on the Judiciary yesterday began its hearings on Supreme Court nominee Elena Kagan.  She's not left a revealing paper trail of legal statements.  And despite her past criticism of unrevealing nomination hearings, it is unlikely that Kagan will tell the Senators much about her judicial philosophy and views (in part for the good cause of preserving judicial independence from the elected branch).  

Yet, there's reason for guarded optimism about Kagan's views on religion in American life.  Sifting through the thin evidence, analysts suggest that Kagan may be more willing than the Court majority has been to defend religious exercise against secular government rules.  

In its ruling in Employment Division v. Smith (1990), the Court held that government rules could override religious exercise as long as the government was legislating neutrally, without targeting religion--as if there would be no constitutional violation if the government banned all use of alcohol, notwithstanding the sacramental use of wine.  Kagan has expressed doubt about this interpretation of religious freedom.  In a California case, the courts had ruled against a woman who, claiming it would implicate her in sin, did not want to rent to a cohabitating couple.  The California Supreme Court callously responded:  she could have avoided the conflict by selling the rental units and doing something else to earn income.  Elena Kagan rightly called this analysis "quite outrageous," pointing out that it was like saying that some state law objected to on religious grounds in fact poses no significant burden on religion because the objectors could just move to a different state.

Note also Kagan's emphatic repudiation, in her testimony as nominee for Solicitor General, of her 1980s view that religious organizations should not be able to get government funds even to provide non-religious services.  Considering the matter again, she said that her statement was "the dumbest thing I've ever read."

Now, as to her views on limited government, life issues, marriage and family, sexual orientation "discrimination," and  . . . . .

See also:

Melissa Rogers, "Free Exercise Flip?  Kagan, Stevens, and the Future of Religious Freedom," Governance Studies at Brookings. http://www.brookings.edu/papers/2010/0623_kagan_rogers.aspx

Letter from the Union of Orthodox Jewish Congregations to the Committee on the Judiciary (June 24, 2010):  http://www.ouradio.org/images/uploads/kagan_jud_cmte.pdf

Religion Clause roundup, with links, "New Focus on Elena Kagan's Religious Liberty and Church-State Views" (June 25, 2010): http://religionclause.blogspot.com/2010/06/new-focus-on-elena-kagans-religious.html
 
eNews for Faith-Based Organizations, "Supreme Court Nominee's Views on Faith-Based Funding" (May 17, 2010): http://archive.constantcontact.com/fs020/1102433538532/archive/1103411645371.html#LETTER.BLOCK6

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Although activists are not satisfied, the Obama administration has enthusiastically set to work to advance the "gay agenda" through extensive administrative change.  It is using (and exceeding?) its executive authority in order to redefine policies and to change practices across federal departments and programs, as recent Washington Post and Associated Press stories have pointed out.

But neither these stories nor the administration say whether, in its push to make federal policy "gay friendly," the federal government is taking care to safeguard religious freedom.

And yet, unless careful and deliberate action is taken, moves to advance homosexual rights can encroach on the legitimate religious freedom of religious institutions.  The collision is evident everywhere these days:  consider, for example, the negative consequences for religious freedom of the redefinition of marriage or the banning of "sexual orientation discrimination" by all student clubs.

This clash has been building for a long time.  Reporters rummaging around in Supreme Court nominee Elena Kagan's papers from her years of service in the Clinton administration uncovered one early sign.  Here's what the Washington Post said:

"Some documents show Kagan trying to protect her bosses from political fallout, even if she agreed with their policy goals. For instance, she told Vice President Al Gore's chief of staff Ron Klain that it was not a good move at the moment for Gore to endorse the proposed Religious Freedom Restoration Act.

"Calling herself the 'biggest fan' of the legislation in the White House, she nevertheless warned that a controversy over part of the bill would mean 'you'll have a gay/lesbian firestorm on your hands.' She said a meeting was planned with gay and religious groups to find a solution. "We'll let you know,' she wrote, 'as soon as it's safe to go back in the water.'"

Here's the back story:  The Religious Freedom Restoration Act (RFRA) is the congressional answer to the Supreme Court's Smith decision, which severely weakened the constitutional protection of religious exercise (see story above).  RFRA was supported by a very broad coalition of groups and it passed both the House and the Senate with almost no votes against.  And yet, as Kagan's comments show, even in this moment of consensus concerning religious freedom, gay rights groups already were beginning to define their goals and freedoms as requiring the restriction of religious freedom.  

That leads to the question:  What is this administration doing to safeguard religious freedom as it pushes to advance the "gay agenda"?

Sobering reading:

Greg Baylor and Tim Tracey, "Nondiscrimination Rules and Religious Associational Freedom," Engage, 8, no. 3: http://www.fed-soc.org/publications/pubID.765/pub_detail.asp

Douglas Laycock, Anthony Picarello, and Robin Fretwell Wilson, eds., Same-Sex Marriage and Religious Liberty:  Emerging Conflicts (Rowman & Littlefield, 2008).

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Reps. Patrick Kennedy (D-RI) and Gene Green (D-TX) have proposed a SAMHSA "modernization" law that would undermine Charitable Choice, the religious hiring freedom, and the Religious Freedom Restoration Act, all at once.  SAMHSA is the Substance Abuse and Mental Health Services Administration, which provides federal funding for mental health services and for substance abuse treatment and prevention services.  (See the story in the June 15th issue of the eNews for Faith-Based Organizations.)  Given the press of other business, it is very unlikely that this Congress, no matter its progressive intentions, will adopt the bill.  

But this is an almost-crisis that should not be wasted. The Kennedy/Green bill is not the first effort to restrict the applicability of RFRA, undermine Charitable Choice, or restrict religious hiring by religious organizations.  Some in Congress are crusaders against religious hiring when government funds are involved, and too many of the members are willing to subordinate religious freedom in the name of advancing other causes.  The pace and subtlety of the attacks on religious hiring are only increasing.

Proponents of religious freedom and faith-based service should gear up for action.

Faith-based organizations:

�  Have a discussion with your board about the growing opposition to religious hiring, and get permission to respond quickly when a real threat arises.

� Educate your staff, board, donors, and supporters about the importance of this freedom and the need to speak up to defend it (yes, 501(c)(3) organizations can speak up about matters like this).  Work out now how you will alert them when it is time to call and write.  

� Think about how to state your case.  Say something like:  Religious hiring is vital to us because our identity and passion for service are grounded in faith.  Don't say:  We claim a right to discriminate on religious grounds when we hire.

�  Evaluate your organization's policies and practices.  Make sure your religious identity is clear and explicit and that your religious hiring practices are firmly related to that religious identity.  Go to the IRFA website to find a checklist.

� Be proactive.  Invite your elected officials to visit your organization, or go to their offices and introduce yourself and your services.  Let them witness your good deeds.  Then explain how those deeds are rooted in the organization's religious convictions.  Whether you accept government funds or not, stress how important religious identity and religious hiring are to you.  Whenever you talk with elected officials or the press, stress your religious identity and not only your good works.  They hear all the time that religious hiring is mere religious bigotry.  Let them know the real story.

Donors, volunteers, and other supporters of faith-based organizations:

� Monitor trends and developments, for example, via this e-newsletter.  

� Make sure you know how to contact your elected officials.  

� Get ready to speak up by thinking about why religious hiring is important to you and to the organizations you care about.  Work out how you can defend your views to skeptics.  

• Here's one source for finding out how to contact your elected federal officials: http://www.usa.gov/Contact/Elected.shtml

• Resources on the religious hiring freedom: http://irfalliance.org/religious-hiring.html

• Encourage your colleagues and the organizations you support to sign-up for the eNews for Faith-Based Organizations at: http://irfalliance.org/

Eye on the Faith-Based Centers
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After a long delay, the faith-based center at the US Department of Labor has had its name updated and gotten a director, deputy director, and a new mission statement.

The original DOL Center for Faith-Based and Community Initiatives made it clear that it sought to work with and to support faith-based and also secular community organizations.  Because of the suspicion that has surrounded government collaboration with explicitly religious organizations, the Center went out of its way to stress its welcome to faith-based organizations, provided resources to help organizations and officials understand the rules of the "level playing field," and made it easy to find the Department's Equal Treatment regulations.

Now . . .  Well, you be the judge.  Here's the new mission statement:  

"The Center for Faith-based and Neighborhood Partnerships at the U.S. Department of Labor implements Secretary Hilda L. Solis' vision of Good Jobs for Everyone by building partnerships with faith-based groups, community organizations, and neighborhood leaders. The Center works in collaboration with DOL agencies to improve the lives of the most vulnerable and disadvantaged workers and job seekers."

And to find the Equal Treatment rules that establish the level playing field so that faith-based organizations can participate without first suppressing their religious identity?  You can find them by following this path . . . .

On the Center's home page, locate "Grant Resources" and
CLICK.  Now locate "New Grant Tools for Faith-Based and Community Organizations" and then find the link "http://www.workforce3one.org/page/grants_toolkit."
CLICK to get to "Applying for ETA Competitive Grants:  A Web-Based Toolkit for Prospective Applicants."  Find the topic, "Tools for Prospective Applicants," then locate "Helpful Resources" and then find "View Resource List."
CLICK to get to "Resources for Applying for ETA Competitive Grants."
CLICK on "ETA Library."  Under "Laws and Regulations," find "Regulations" and
CLICK to get to the "Regulatory Activities" page.  Locate "Links to ETA Rulemaking Activities" and then find "Final Rules for ETA."
CLICK to get to "Federal Register Final Rules for ETA."  Find the number "4" for page 4 and
CLICK.  Scan to find, under the year 2004, "7/12/2004 - Final Rules - ETA - Equal Treatment in Department of Labor Programs for Faith-Based and Community Organizations; Protection of Religious Liberty of Department of Labor Social Service Providers and Beneficiaries [PDF]."
CLICK one last time and you'll get to the actual regulations.

These vital rules are not so inaccessible, are they?

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