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  Civil Rights
ADL Letter to the Senate Judiciary Committee on Kagan Confirmation Hearings
June 22, 2010

The Honorable Patrick Leahy
Senate Judiciary Committee
224 Dirksen Senate Office Building
Washington, DC 20510

The Honorable Jeff Sessions
Ranking Member
Senate Judiciary Committee
224 Dirksen Senate Office Building
Washington, DC 20510

Dear Senators Leahy and Sessions:

In anticipation of the upcoming hearings on the nomination of Solicitor General Elena Kagan as an Associate Justice of the United States Supreme Court, we write to urge you and your colleagues on the Judiciary Committee (the “Committee”) to examine what she sees as the Supreme Court’s role in interpreting the United States Constitution and laws that protect fundamental rights and liberties.  More specifically, we believe it is important to explore her views on the contemporary parameters of: (1) the religion clauses of the First Amendment, (2) federal civil rights laws, (3) free speech rights, (4) the balance between national security and civil liberties (5) privacy rights, (6) immigration, (7) voting rights, (8) equal rights and (9) her general judicial philosophy.

In this regard, we respectfully recommend that you probe her views on the specific questions highlighted in this letter.

Establishment Clause / Free Exercise

The Establishment Clause and Free Exercise Clause of the First Amendment are both vital to the preservation and protection of religious freedom in this country, and both continue to generate considerable controversy.   We think it is of the utmost importance for the Committee to gain clarity as to the Solicitor General’s perspective on each of these subjects.

The Establishment Clause

ADL has long believed that strict separation of church and state is necessary to protect the religious rights of all.  ADL is concerned about various aspects of contemporary Establishment Clause jurisprudence, including the judicial standard employed when interpreting the First Amendment; to what extent religious symbols can be displayed on public lands; the issue of who has standing to bring an Establishment Clause claim; and the appropriateness of the government funding religious institutions.

While ADL welcomed the Court’s recent statement in Pleasant Grove v. Summum, 129 S.Ct. 1125 (2009), that when the government chooses monuments to display, it "must comport with the Establishment Clause" and cannot promote or endorse religion, we were disappointed with the Court’s decision in Salazar v. Buono, 559 U.S. ___ (2010) involving a Congressional land transfer to solve a dispute over a cross on display in a federal park.  Solicitor General Kagan, in her role as U.S. Solicitor General, argued in support of the land transfer as a cure for an Establishment Clause violation.  The Court issued a splintered decision in the case, but ADL was especially troubled that a plurality of the justices held that a cross may be considered a secular symbol. 

Further, in Salazar, Solicitor General Kagan advocated that the Plaintiff in the case did not have standing to bring the challenge to the court.  We were gratified that the Court did not agree with that argument, but continue to have concerns about the ability of taxpayers to challenge possible Establishment Clause violations in the wake of the Court’s 2008 decision in Hein vs. Religious Freedom Foundation, 551 U.S. 587 (2007).  It would be important to learn the nominee’s views on this matter.  

With regard to the use of public money to fund religious institutions, President Obama has continued President Bush’s efforts to encourage community partners, including religious institutions, to carry out vital social services.  The League has been deeply troubled by the design and implementation of these initiatives, particularly with regard to the provision of funds to groups that may discriminate in their hiring and/or proselytize to those they serve.  The Solicitor General’s position on this is unclear, although in at least one instance addressing a similar issue, she reportedly suggested that people should be allowed to meet student loan obligations by “doing service activities under the auspices of church programs” as long as the programs aren’t “pervasively sectarian.”    

ADL encourages the Committee to ask the nominee to articulate her views on the significance of these important Establishment Clause issues, including the validity of the Lemon Test, the issue of who has standing to bring an Establishment Clause action, and the appropriateness of government funding of religious activities. 

Free Exercise

We also suggest that the Committee explore the nominee’s view of the Court’s role in preserving and protecting religious liberty and religious free exercise.  In Employment Division v. Smith, 496 U.S. 913 (1990), the Court eliminated the longstanding “compelling state interest” test for free exercise cases, and held that valid and neutral laws of general applicability may incidentally infringe upon free exercise rights without running afoul of the First Amendment. This analytical approach has affected numerous religious activities.  

Another issue worth probing with the nominee is how she would approach situations when free exercise rights come into conflict with other rights, such as equal protection rights or the right to be free from discrimination.  In the California Supreme Court case Smith v.  Fair Employment & Housing Commission, 12 Cal 4th 1143, 1156 (1996), a landlord claimed that a regulation prohibiting her from discriminating against unmarried prospective tenants violated her free exercise rights.  In its decision, the California Supreme Court held that the landlord’s rights were not violated because the regulation was neutral and generally applicable, the prohibition did not substantially burden the landlord’s religious exercise and granting her an exemption would detrimentally affect the rights of third parties.  ADL submitted an amicus brief in the case in support of the regulation.  Therefore, the League was disappointed to hear reports that, in her role as a White House counsel under President Bill Clinton, the nominee found the California court’s ruling to be “outrageous” and expressed her opinion that the Supreme Court should hear the case on appeal and overturn the decision.

We encourage the Committee to explore the nominee’s view on the limitations of the Smith decision and the legal balance between the right to free exercise of one party and the equal protection rights of another.

Civil Rights Laws

Civil rights issues continue to reach the Court on a regular basis. ADL has long sought to eradicate discrimination in employment, education and housing as well as in other areas of American life.  ADL supports a broad interpretation of the Constitution’s equal protection guarantees, and their prohibition against discrimination on the basis of a range of suspect classifications. 

We encourage the Committee to question Solicitor General Kagan’s understanding of race-based decision making in the education context, and ask that she discuss whether she sees a compelling state interest in diversity.  Another discrimination-related issue worth probing with the nominee is her view on the appropriate legal standard for proving that a retaliation or hostile work environment claim exists. 

Student speech

As e-mails, text messages, blogs, and social networking sites have become the communities in which our nation’s students socialize, issues involving youth use of the Internet have exploded.   While the Internet has been looked to as an open forum for expressing viewpoints, it has also become a place for hurt.  Cyberbullying has become increasingly prevalent over the past several years as students harass or bully their fellow students over e-mail and the Internet.  Schools across the country are concerned about how to discipline students who bully over the Internet, particularly when the messages are sent from the perpetrator’s home computer. 

The range in court holdings on this particular issue across trial courts gives little guidance on the legal issue of whether a public school can discipline a student who bullies another from a home computer, though a number of recent appellate decisions have determined that a student may be disciplined for expressive conduct, even conduct occurring off school grounds, when this conduct would foreseeably create a risk of substantial disruption within the school environment.

We encourage the Committee to question the nominee’s interpretation about the balance of student’s free speech rights and a school’s obligation to provide a safe learning environment, particularly with concern to electronic expression. 

Balancing National Security and Individual Rights

It is of the utmost importance that, while our nation is addressing issues of terrorism at home and abroad, our government must be armed with the tools to effectively combat real and serious threats while safeguarding civil liberties for all.  It is ADL’s view that our democratic ideals do not need to be sacrificed in order to ensure our physical security.  We also believe that one branch of government should not be able to unilaterally make decisions in these areas, where checks and balances are established and in place to protect against abuses.  For this reason, the League joined a coalition of civil rights organizations in supporting habeas corpus rights for detainees in Guantanamo Bay in both Rasul v. Bush, 129 S.Ct. 763 U.S. (2004)and Boumediene v. Bush, 128 S.Ct. 2229 (2008).

In 2009, Solicitor General Kagan, acting on behalf of the U.S. in the case Humanitarian Law Project v. Holder, advocated to the U.S. Supreme Court that material support provisions of the Anti-Terrorism and Effective Death Penalty Act of 1996 which include knowingly providing “training,” “expert advice or assistance” and/or “service” to foreign terrorist organizations are constitutional.  ADL agreed with this interpretation, and the Supreme Court vindicated this position in a decision issued on June 21, 2010. 561 U.S. ___ (2010)   

This nation’s fight for security has recently brought to light questions of law related to the use of the Internet for illegal ends, the meaning of materially supporting a terrorist organization, the definition of a fair military tribunal, and the status of certain combatants. 

The Committee should question the nominee’s view on the role of the Executive, Legislative and the Judicial branches in dealing with issues of national security.  We encourage the Committee to explore the nominee’s interpretation of the definition of “material support” and what due process rights exist for foreign detainees in custody in the U.S. 

Reproductive Rights/Right to Privacy

Without a doubt, the issue of reproductive choice is a constant source of tension in this country.  Since the seminal case of Roe vs. Wade, which clearly established the fundamental right to privacy in this area, there have been numerous legal battles analyzing the extent to which government can regulate that fundamental right without violating it.  It has been the League’s long-standing position that adults should be permitted to make decisions regarding their health, including reproductive choices, in accordance with their own conscience and their own faith, and without governmental interference. 

Legal battles in the reproductive choice arena have also moved beyond the topic of the right to have an abortion procedure to issues of control over reproductive health generally.  Some legal issues in the courts involve the right of a patient to obtain contraception and the right of a patient to hear the options available to her with concern to her reproductive health.  Others may deal with efforts to restrict access such as mandatory waiting periods, conditions that women undergo ultrasounds prior to an abortion and parental notification requirements.

The Committee should ask Solicitor General Kagan the importance she places on the precedential value of Roe vs. Wade.  The Committee should also determine the nominee’s view on the issue of a constitutional right to privacy generally.  We encourage the Committee to ask the nominee about her views on whether she sees the right to choose an abortion as a Constitutional right, and, if yes, then what she sees as the limitations on governmental regulation of that right.


There has been much debate about whether states or localities can enact laws related to an individual’s citizenship status.  According to the National Conference of State Legislatures, in the first quarter of 2010, state legislators in 45 states introduced 1,180 bills and resolutions relating to immigrants and refugees.  In 2009, state legislatures enacted record levels of immigrant-related legislation, with 222 laws enacted and 131 resolutions adopted in 48 states.  These laws include provisions related to employing or renting to undocumented persons and laws that require local law enforcement to enforce federal immigration laws.    A number of federal trial courts have held that certain state laws related to immigration status are preempted by federal statutes and that they violate the Equal Protection and Due Process clauses of the Constitution. 

The Committee should ask Solicitor General Kagan her views on a state’s capacity to enact laws related to the citizenship and/or immigration status of persons within its jurisdiction.

Voting Rights

In this past term, Section 5 of the Voting Rights Act was at issue before the Court.  While the Court’s decision in Northwest Austin v. Holder upheld Section 5 and decided the case on other grounds, the opinion made clear that Section 5’s relevance and constitutionality may come before the Court again.  ADL believes the Voting Rights Act is one of the most important pieces of civil rights legislation, and that Congress’ decision, made after careful deliberation, that the regulations within Section 5 are still necessary today, should not be second-guessed.

We encourage the Committee to ask Solicitor General Kagan to expound on her view on the role of Congress and the Judiciary in the context of interpreting the relevancy of the Voting Rights Act, and any other federal civil rights law.

Marriage Equality

Currently, six states permit marriage between individuals of the same sex.  Courts in Iowa, Massachusetts and Connecticut have held that a ban on same-sex marriage violates the equal protection clause in their respective state constitutions.  Although its state constitution was subsequently amended, the California Supreme Court, in its 2007 analysis of a ban on same-sex marriage, specifically gave strict scrutiny review to the classification of sexual orientation.  ADL wrote an amicus brief to the California Supreme Court contending that the ban on same-sex marriage violated the state Constitution.  The federal Defense of Marriage Act defines marriage on a federal level as between a man and a woman, and denies federal benefits to married same-sex couples. 

We encourage the Committee question the nominee on the applicability of strict scrutiny review to the classification of sexual orientation, and whether a law which permits marriage only between a man and woman violates the equal protection clause. 

Judicial Philosophy

We respectfully urge the Committee to explore whether the nominee subscribes to any particular canon of construction when interpreting the Constitution.  What is her view of “judicial activism” and how does she define it? 

The Committee should ask the nominee about her philosophy regarding stare decisis.  Would she read precedent narrowly or broadly, and under what circumstances would she vote to overturn precedent with which she disagrees?

In ADL’s view, the Senate’s role in the nomination process is equally as important as the President’s responsibility to nominate.  We hope this submission of issues of concern to us will be of assistance to the Committee as it undertakes its evaluation of Solicitor General Kagan and wish you good luck as you move forward with the hearing.


Robert G. Sugarman,
National Chair

Howard W. Goldstein
Chair, Civil Rights
Abraham H. Foxman
National Director

Deborah M. Lauter
Director, Civil Rights

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ADL Statement on the Nomination of Solicitor General Elena Kagan to the U.S. Supreme Court (5/10/10)

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