Secularists wary of Kagan on Supreme Court

WASHINGTON (RNS) Supreme Court nominee Elena Kagan wrapped up her confirmation hearings Wednesday (June 30) without major hiccups, but she’s drawing concern — even opposition — from an unexpected camp: secularists. While Kagan, a Democrat, has faced the greatest scrutiny on her views on abortion and homosexuality, some atheist, agnostic and secularist groups aren’t convinced […]

(RNS2-JUL01) Atheist groups, including the Washington-based American Humanist Association, have expressed reservations about Supreme Court nominee Elena Kagan's commitment to church-state separation. For use with RNS-ATHEISTS-KAGAN, transmitted July 1, 2010. RNS photo by Maggie Hyde.

(RNS2-JUL01) Atheist groups, including the Washington-based American Humanist Association, have expressed reservations about Supreme Court nominee Elena Kagan’s commitment to church-state separation. For use with RNS-ATHEISTS-KAGAN, transmitted July 1, 2010. RNS photo by Maggie Hyde.

WASHINGTON (RNS) Supreme Court nominee Elena Kagan wrapped up her confirmation hearings Wednesday (June 30) without major hiccups, but she’s drawing concern — even opposition — from an unexpected camp: secularists.

While Kagan, a Democrat, has faced the greatest scrutiny on her views on abortion and homosexuality, some atheist, agnostic and secularist groups aren’t convinced she’s the best choice for the court.


Part of the reason: she’s poised to replace Justice John Paul Stevens, one of the court’s strongest voices for a strict separation of church and state.

“From the evidence so far, she has too often sided with religious privilege over civil liberties, civil rights,” said Paul Fidalgo, spokesman for the Secular Coalition for America. “She favors free exercise over civil liberties.”

Fidalgo’s umbrella group announced its opposition before Kagan’s hearings even got started. They’re concerned that Kagan would embrace a more expansive view of religious expression than Stevens did, and allow cracks to develop in the wall of separation between church and state.

“Stevens was a stalwart,” said Annie Laurie Gaylor, co-president of the Freedom From Religion Foundation. “It’s going to be a weakened court” (without him).

Critics point to statements Kagan made while working as an attorney in the Clinton White House about a California Supreme Court ruling that said a landlord could not refuse to rent to an unmarried couple because of the landlord’s religious beliefs about premarital sex.

Kagan sided with the rights of the landlord, and called the decision “quite outrageous.”

In testimony on Wednesday, Kagan said the First Amendment guarantee of “free exercise” of religion and the prohibition on the “establishment” of state religion are often held “in tension.”


“There needs to be some `play in the joints,”‘ she said. “There needs to be some freedom for government … to make religious accommodations without being subject to establishment clause challenges, and some freedom on government’s part to enforce the values of the establishment clause without being subject to free exercise claims.”

Either way, she said, “what they’re both designed to do is to ensure that you have full rights as an American citizen,” adding that religion should never be used “to put people, because of their religious belief or because of their religious practice, at some disadvantage.”

Secularists hope that a lack of religious belief or practice would carry the same protections.

The Secular Coalition for America was founded in 2002 to give a voice to the estimated one in six Americans who do not claim any formal religious affiliation. The opposition to Kagan is one strategy to make the lobby’s presence felt in Washington.

As the secularist community has grown in both numbers and visibility in recent years, activists have been more willing to use the courts to fend off what they see as inappropriate government-sponsored religion.

In 2007, the Supreme Court rejected, 5-4, a challenge from Gaylor’s group over the White House’s faith-based initiatives office. Without deciding the merits of the complaint, the court rejected Gaylor’s argument that she had legal standing to sue because she is a taxpayer. Stevens dissented.


On Wednesday, in response to a question from Sen. Dianne Feinstein, D-Calif., Kagan indicated that she agreed with the court’s reasoning.

“The injury can’t come just by virtue of being a taxpayer, but has to come from something else in addition,” she said.

“Such as the individual being actually affected,” Feinstein replied.

“Yes, exactly right,” Kagan answered.

Kagan’s nomination, and expected confirmation, is not likely to prompt large-scale protests from atheist groups, leaders say. Still, they’re hoping for some reassurance from Kagan that non-believers and secularists will be treated with the same respect as religious adherents.

“We just want her on the record saying the freedom to not believe is a freedom guaranteed,” said David Niose, president of the American Humanist Association.

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