First Amendment Meant to Protect Religion, Kagan Says

By Mark Walsh — June 30, 2010 2 min read
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Questions relating to education have been few and far between at Elena Kagan’s confirmation hearing on her nomination to the Supreme Court. Today, though, two Democratic senators broached the topic of the U.S. Constitution’s religion clauses.

Since so much education litigation occurs under the First Amendment’s prohibition of government establishment of religion, let’s examine this issue as raised by Sen. Dianne Feinstein, D-Calif., and Sen. Benjamin L. Cardin, D-Md.

Feinstein raised a question about a 2007 Supreme Court ruling, Hein v. Freedom From Religion Foundation, that made it harder for taxpayers to challenge alleged violations of the establishment clause. She then asked Kagan to describe her views on the establishment clause and the First Amendment’s free-exercise-of-religion clause.

Kagan began by describing the Supreme Court’s various and often conflicting tests for analyzing whether a law or government program violates the establishment clause. Despite the various tests, most lower courts still adhere to the court’s three-pronged test from the 1971 case of Lemon v. Kurtzman.

“I think the reason there are so many tests is that establishment clause cases arise in a large variety of contexts,” Kagan said. “It’s very hard to say which [test] is appropriate [in any given case]. It’s a more contextual inquiry.”

Kagan appeared animated and enthusiastic about the topic, which was a fresh one for the hearing after countless questions about her alleged political activism, or her handling of military recruiters at Harvard Law School,

“What both [religion] clauses are designed to do is say you have full rights as an American citizen, no matter what your religion is,” Kagan said. “And to ensure that religion never acts as a function to put people at a disadvantage with respect to any of their rights.”

Sen. Cardin picked up on the religion clauses on Wednesday afternoon.

“What special protections should students have under the establishment clause?” Cardin asked, citing the Supreme Court’s 1992 decision in Lee v. Weisman, which held a school district’s decision to have a rabbi deliver a prayer at a middle school graduation ceremony to be a constitutional violation.

Justice Anthony M. Kennedy relied on a coercion test in Lee, Kagan noted, and the court has applied such a test in other cases involving alleged establishment clause violations in programs involving children.

“Certainly the coercion test is used most often when it comes to children,” she said, “I think that Lee v. Weisman reflects that. But it is a contentious area of the law. That case is a good example of the way people can look at the same kind of action and some see coercion and some not.”

Neither Feinstein nor Cardin pressed very deeply into the religion area, so that’s all we get from Kagan on it for now.

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A version of this news article first appeared in The School Law Blog.