Or, as pro-gay as some of her statements (i.e. on "don't ask, don't tell") have appeared, does she believe that "religious freedom" should trump such laws -- laws which of course are opposed by religious zealots? Gay City News' Duncan Osborne has a post on his blog which raises these interesting questions, and it is a must-read (he'll be on the show on Monday at 4:30 ET to discuss it further). It underscores Glenn Greenwald's concerns about how little we know of Kagan's views and why senators must pose very specific questions to her and demand clear answers.
Most of the corporate media has, not surprisingly, given short shrift to Kagan's '96 memo on religious freedom as it emerged in the latest batch of documents from the Clinton Library on Friday. The New York Times summarized it this way in describing advice she gave as Associate White House Counsel in the Clinton administration in 1996:
In another case, she recommended that the federal government intervene in a case to support religious freedom. The California Supreme Court ruled that a landlord violated a state law prohibiting housing discrimination by refusing to rent an apartment to an unwed couple because she considered sex outside marriage to be a sin. Ms. Kagan scorned the California justices’ rationale that the landlord’s religious freedom was not burdened because she could get another job. “The plurality’s reasoning seem to me quite outrageous — almost as if a court were to hold that a state law does not impose a substantial burden on religion because the complainant is free to move to another state,” Ms. Kagan wrote.
Calling the California Supreme Court ruling "outrageous" may sound bad enough, but the Times didn't report this in the context of what Kagan's advice was really about: Defending The Religious Restoration Freedom Act, a law passed by Congress in 1993 and which Bill Clinton supported, which basically would have allowed for broadly exempting entities from adhering to civil rights laws and anti-discrimination laws -- including laws protecting gay, lesbian, bisexual and transgender Americans -- viewed as infringing on religious freedom. The very Supreme Court on which Kagan seeks to be seated eventually ruled this aspect of the law unconstitutional, in a 6-3 decision in 1997 that included Justices Scalia, Thomas and Rehnquist in the majority along with Justices Stevens and Ginsburg. Duncan Osborne points to Kagan's statement in the '96 memo that followed her dubbing as "outrageous" the California Supreme Court's ruling:
[G]iven the importance of this issue to the President and the danger this decision poses to [the Religious Freedom Restoration Act’s] guarantee of religious freedom in the State of California, I think there is an argument to be made for urging the Court to review and reverse the decision.”
The memo was written to White House Counsel Jack Quinn and his deputy counsel, and Osborne notes that Kagan wrote the memo after she was contacted by the legal director at the Christian Legal Society, who told her that several religious groups would be urging the Supreme Court to overturn the California decision. (The application was denied in 1997). Osborne describes how the Mormon Church joined the other religious groups, while Lambda Legal, the gay legal group, defended the California Supreme Court decision in a brief. He also explains the details of the California case that none of the media have -- including how the plaintiff was represented pro bono by a lawyer from Concerned Women for America -- and why Kagan's memo should be of great interest and concern to LGBT activists and all progressives:
Joining the [Christian Legal Society] were the Church of Jesus Christ of Latter Day Saints, commonly known as the Mormon church, the National Association of Evangelicals, the Southern Baptist Convention as well as a coalition of Baptist organizations, the National Council of the Churches of Christ, and the American Jewish Congress.
The California case concerned a landlord, Evelyn Smith, who owned four rental units. Smith lived elsewhere. In 1987, she rented a unit to a heterosexual couple who told her they were married, but disclosed they were unmarried after the lease was signed. Citing her religious beliefs, Smith refused to let them move in and they sued claiming discrimination based on marital status under California’s Fair Employment and Housing Act. The case moved through the courts until the 1996 ruling from the state’s highest court. Lambda Legal, the gay rights law firm, filed a brief on behalf of the couple. Smith was represented, pro bono, by an attorney from Concerned Women For America, a rightwing group.
In her 1996 memo, Kagan said she was told that the Solicitor General, the office that handles government litigation before the US Supreme Court, was not joining the application.
“The deadline for filing is next week (though the SG's office can of course ask for an extension), so if we want the SG's office to reverse its decision, we will have to act very quickly,” Kagan wrote. Quinn’s handwritten response on the memo is indecipherable. It is not clear that the Clinton administration joined the petition.
For lesbian, transgender, bisexual and gay Americans, Kagan’s position is not academic. Religious conservatives have argued that their beliefs should allow them to ignore anti-discrimination laws protecting the queer community.
In 1999, Lambda Legal sued the North Coast Women's Care Medical Group on behalf of a lesbian who was denied services there by doctors who claimed their religious beliefs allowed that. The case was settled in 2009.
In 2008, the Bush administration issued a federal rule that could bar any healthcare facility that receives federal funds from firing or punishing an employee who cites “religious beliefs or moral convictions” and refuses to provide services to gay, lesbian, bisexual or transgendered patients or people with AIDS. That rule appears to have been reversed in 2009.
Gay groups praised Kagan’s nomination, but kept some of their powder dry saying they would review her record and looked forward to a thorough examination of it by the Senate.
It's imperative that senators ask Kagan specifically about this case and whether or not she still agrees with the sentiments of her '96 memo and what they meant for anti-discrimination laws. And LGBT advocacy groups in Washington had better push them to do so, as well as demand answers from the White House and Kagan about her views on religious freedom and laws protecting gay, lesbian bisexual and transgender Americans.