Justice Kagan and Religious Liberty

Leslie C. Griffin

With the Supreme Court set to hear oral arguments about the Religious Freedom Restoration Act (RFRA) in Sebelius v. Hobby Lobby Stores on Tuesday, March 25, Justice Elena Kagan’s distinctive perspective on RFRA is of special interest. In Hobby Lobby, the Court is reviewing the Tenth Circuit’s ruling that RFRA exempts Hobby Lobby from the contraceptive mandate of the Affordable Care Act (ACA).

As a White House lawyer during the Clinton administration, Kagan was heavily involved in RFRA’s passage. Her White House memo criticizing a 1996 California Supreme Court decision, Smith v. Fair Employment and Housing Commission, suggests Kagan may favor RFRA over the civil rights laws. Smith involved a landlord who refused to rent her rental units in two duplexes to unmarried couples because she was religiously opposed to extramarital sex. The owner, Evelyn Smith, did not live on the property. The units were “operated exclusively for business and commercial purposes, with income generated from the rentals reported as business income.”

The California Supreme Court ruled that Evelyn Smith was required to abide by the fair housing laws, which prohibit discrimination against unmarried couples. Under RFRA, the court ruled, the fair housing law did not substantially burden Smith’s religion because her religion did not “require her to rent apartments, nor is investment in rental units the only available income-producing use of her capital. Thus she can avoid the burden on her religious exercise without violating her beliefs or threatening her livelihood.” In resolving the religious freedom question against Smith, moreover, the court importantly noted that granting Smith’s request would have a “serious impact on the rights and interests of third parties,” and in the housing context specifically “sacrifice the rights of her prospective tenants to have equal access to public accommodations and their legal and dignity interests in freedom from discrimination based on personal characteristics.”

Kagan was offended by the court’s reasoning and disappointed that the Solicitor General did not join a coalition of religious groups in asking the Supreme Court to overturn the California ruling. The court’s reasoning “seems to me quite outrageous,” she wrote, “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. Taken seriously, this kind of reasoning could strip RFRA of any real meaning.” Kagan then promised to “call Walter [Dellinger, then Acting Solicitor General] on Monday to find out exactly why the SG’s office decided not to file.”

Kagan’s memo said nothing about the importance of the fair housing laws or the rights of the prospective tenants to freedom, dignity and equality. Kagan also missed the real legal issue involved with RFRA; a year later, the Supreme Court declared it unconstitutional in City of Boerne v. Flores. In a concurrence to City of Boerne, Justice John Paul Stevens, whom Kagan replaced on the Court, sensibly declared that RFRA violated the Establishment Clause because it “provided the Church with a legal weapon that no atheist or agnostic can obtain.” Justice Kagan’s memo suggests that, unlike her predecessor, she will not invalidate Hobby Lobby’s exemption to the ACA under the Establishment Clause even though several amici, including Professor Hamilton, have asked the Court to do so. One is left to wonder, as well, if she may look favorably upon Hobby Lobby’s claim that corporations are persons, protected by the statute, who can exercise religion and use that exercise to block women employees from the freedom, dignity and equality guaranteed to them under the ACA.

As a Supreme Court Justice, Kagan has already sided with religious freedom over the antidiscrimination laws in Hosanna-Tabor v EEOC, where the Court ruled that the First Amendment did not allow a Lutheran school teacher to sue her employer under the disabilities antidiscrimination laws. Justice Kagan not only signed onto the Court’s opinion concluding that the First Amendment barred the lawsuit, but also joined Justice Samuel Alito’s broad concurrence lauding church “autonomy” from the civil rights laws even though seven other justices refused to adopt the church autonomy reasoning. According to Justices Alito and Kagan, the Religion Clauses “protect a private sphere within which religious bodies are free to govern themselves in accordance with their own beliefs.”

Now Hobby Lobby argues that under RFRA it, too, qualifies as a religious body that should be free to govern its employees in accordance with its own beliefs against contraception. This case will test how far Justice Kagan is willing to go to give believers autonomy to govern themselves in accordance with their own beliefs in a setting far removed from Evelyn Smith’s rental house as well as Elena Kagan’s office in the White House.

Photo By The White House from Washington, DC (P100110PS-0536) [Public domain], via Wikimedia Commons

Leslie C. Griffin

Leslie C. Griffin

Dr. Leslie C. Griffin is the William S. Boyd Professor of Law at the University of Nevada, Las Vegas, William S. Boyd School of Law. Professor Griffin, who teaches constitutional law, is known for her interdisciplinary work in law and religion. She holds a Ph.D. in Religious Studies from Yale University and a J.D. from Stanford Law School.