It’s starting to look as though Elena Kagan may be the kind of Supreme Court justice who fits in very nicely with the post-separationist ideology of the Rehnquist and Roberts courts. In her confirmation hearings to be solicitor general, she threw under the bus the interpretation favored by her then boss, Thurgood Marshall, and his fellow separationists in Bowen v. Kendrick, a case that challenged the Adolescent Family Life Act.

The act
authorizes Federal funds for religious organizations designed to
discourage teen pregnancy and provide care to pregnant teens. The separationist minority’s position was that the act violated
the First Amendment’s ban on religious establishments because, as law clerk Kagan had put it in a memo, “when the government funding is to be used for projects so close to the
central concerns of religion, all religious organizations should be off
limits.” Solicitor General-nominee Kagan called that “the dumbest thing I have ever heard.”

Now comes Kagan’s view, as legal adviser in the Clinton White House, on a case in which the California Supreme Court ruled that a landlord illegally violated a state fair housing law by refusing on religious grounds to rent an apartment to an unwed couple. The landlord, Kagan indicated in a newly released memo, had a free exercise right not to rent:

The plurality’s reasoning seems 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.

One might argue that, in her earlier confirmation hearing, Kagan was just, ah, cozying up to Senate Republicans. But the internal memo is different matter. Permitting free exercise to trump anti-discrimination laws–which could include a refusal to rent to a legally married  same-sex couple–is a very big deal. It will be interesting to see whether conservative religious legal outfits like the Becket Fund and the American Center for Law and Justice decide to embrace Kagan. And whether the other side–the ACLU and Americans United–begins having serious doubts.

Update: Memo and the amicus brief it relates to: Kagan on RFRA.pdf