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Senate Must Question Elena Kagan on Church-State Separation

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Watchdog Group Calls On Judiciary Committee Members To Ascertain Nominee’s Views On Key Religious Liberty Issues

Americans United for Separation of Church and State today called on the Senate Judiciary Committee to question Supreme Court nominee Elena Kagan on her views concerning a range of church-state issues.

President Barack Obama today announced the nomination of Kagan, currently U.S. solicitor general, to the high court. Since Kagan has not been a judge, she lacks a clear record on church-state separation issues.

“We simply don’t know much about Elena Kagan’s views on church-state separation,” said Barry W. Lynn, executive director of Americans United. “It’s the job of the Senate Judiciary Committee to fill in the picture by asking her questions about how religion and government should interact.”

As solicitor general, Kagan argued a church-state case before the Supreme Court this term, defending a federal statute designed to preserve a cross erected on federal land in California. However, the Justice Department inherited that case, Salazar v. Buono, from the previous Bush administration.

In 1987, while serving as a clerk for Justice Thurgood Marshall, Kagan wrote a memo adopting a separationist viewpoint and stating that religious groups should not be able to receive public funding for certain secular activities. During her confirmation hearings for solicitor general, however, she distanced herself from that analysis, calling it “deeply mistaken” and “utterly wrong.”

Said Lynn, “The Supreme Court is deeply divided over issues such as tax funding of religion, the role of religion in public life and the limits of religious freedom. We urge the U.S. Senate to ascertain Kagan’s basic judicial philosophy in an area that is crucial to so many Americans.” 

Lynn added that this is especially important because Kagan would replace Justice John Paul Stevens, a strong supporter of separation of church and state.

“Justice Stevens understood why our nation needs a high and firm wall of separation between church and state,” Lynn said. “His replacement should too.”

Americans United is a religious liberty watchdog group based in Washington, D.C. Founded in 1947, the organization educates Americans about the importance of church-state separation in safeguarding religious freedom.


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