Monday, July 26, 2010
Kagan, the Court, and Religious Liberty
Here is an op-ed of mine, which appeared in today's edition of USA Today, about the Court's recent (and upcoming) religious-liberty decisions, and about the way that a Justice Kagan should approach such cases. A bit:
. . . 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. . ..
I'd welcome your thoughts.
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I might be encouraged by her reference to the right of people not to be disadvantaged as opposed to Justice O'Connor's concern that persons not be made to "feel like" outsiders. The latter leads to an overly ambitious notion of establishment that cannot deliver on the promises it makes. But I might be reading too much into her testimony.
Posted by: Rick Esenberg | Jul 28, 2010 10:02:09 AM
Sotomayor joining with Stevens in the cross/Buono case was interesting. You suggest a modest justice would have went the way of Kennedy. But, the facts underline Congress in a discriminatory way supported a Christian symbol while not being concerned with the rejection of a Buddhist symbol. One religious symbol in honor of the dead was favored over others.
As the law school case, you want to give religious groups special treatment. This seems curious in the face of Oregon v. Smith. Religious groups are not being particularly targeted any more than Kagan's law school particularly targeted military recruiters. There was a single policy and religious groups AND OTHERS had to follow it. Again, you support favoritism.
Thirdly, voucher programs are a complicated issue that there can be honest disagreements about. But, Stevens, Souter and Breyer in the last voucher case underlined that the 'liberal' side very well can be said to be about religious liberty as much as when Madison opposed Patrick Henry's bill that provided funds to Christian teachers, individuals allowed to pick what particular ones.
I can only guess what Kagan will do in religion cases. Sotomayor's vote in Buono, e.g., was something of a surprise. But, religious liberty is one area where the federal courts have a legitimate role in questioning the will of the majority.
Posted by: Joe | Jul 29, 2010 11:38:32 PM
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