Kagan: Establishment Clause Is “Hard”

Via the Baptist Joint Committee for Religious Liberty’s blog, Elena Kagan answered a few questions on the Establishment Clause yesterday. In light of past indications that she has leaned toward more flexibility for religious freedom (granted by the free exercise clause) than upholding the church-state divide (ensured by the establishment clause), her answers were of great interest to church-state separation advocates.

But Kagan’s answers didn’t shed a lot of light on her Establishment Clause views, other than that she believes balancing these two constitutional imperatives requires, as the Court has said, “play in the joints.” From the BJC’s unofficial transcript:

But what the court has said with respect to this issue – and there seems to me great virtue in this approach – is that in order to prevent that from happening, or to prevent it the other way – where the state does something in order to advance Establishment Clause values and then somebody comes in and makes a Free Exercise claim. Either way, what the court has stated is that there needs to be some “play in the joints.” There needs to be some freedom for government to act in this area without being subject to a claim from the other side – 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. That’s not to say how any particular case should come out, because sometimes the state goes too far, but that in general there needs to be a little bit of “play in the joints” in order to prevent the state from sort of not being able to do anything, from bring hamstrung in this area.

As to which test she would use in Establishment Clause cases, Kagan said: 

[T]hat is a hard, hard question. Right now there are a multitude of such tests. The most established one, the oldest one, is the Lemon v Kurtzmann test, which is a three-part test focusing on the purpose of a governmental action, the effect of a governmental action – whether the governmental action has the primary effect of inhibiting or advancing religion, and the third part of the test focuses on entanglement between the government and the religious entity. Many, many justices have tried to kill this test. I think that there have been six individual justices who at least have expressed some skepticism about it. But it continues on; it has not been reversed, and it’s usually the test that the lower courts apply. Its sometimes applied and sometimes not applied by the Supreme Court very much depending on the circumstances, but it continues to be the primary test of the court.

The religious right has aimed for nearly two decades to eliminate use of the Lemon test in favor of examining Establishment Clause cases through a prism of whether the government action discriminates against a (Christian) “viewpoint,” rather than whether the action constitutes a government endorsement of religion. Kagan wasn’t clear about where she stands on Lemon.

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