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Kagan File, News, Statements, U.S. Supreme Court

AUL’s Kagan File: The “Marshall” Memo


TO: [Undisclosed Parties]

FROM: Americans United for Life Legal Team

DATE: May 14, 2010

RE: Elena Kagan:  Federal Funding for Religious Organizations that Serve Those in Need – “Off Limits”?


While serving as a clerk for Justice Thurgood Marshall on the United States Supreme Court in October 1987, Elena Kagan wrote a memo arguing that “all religious organizations should be off limits” from receiving federal funding to support projects authorized by the Adolescent Family Life Act (including pregnancy testing, adoption counseling and referral services, prenatal and postnatal care, educational services, residential care, child care, consumer education, etc.) because those projects are “so close to the central concerns of religion.”[1]

The Supreme Court rejected Kagan’s position in Bowen v. Kendrick.[2] In Bowen, the Supreme Court reversed the district court’s ruling that federal grants to religious organizations under the Adolescent Family Life Act (AFLA) violated the Establishment Clause of the First Amendment.  Notably, Justice Marshall dissented.

  • Kagan’s memo made clear her view that the AFLA violated the Establishment Clause:

I think the [district court] got the case right.  The funding here is to be used to support projects designed to discourage adolescent pregnancy and to provide care for pregnant adolescents.  It would be difficult for any religious organization to participate in such projects without injecting some kind of religious teaching.  The government is of course right that religious organizations are different and that these differences are sometimes relevant for the purposes of government funding.  The government, for example, may give educational subsidies to religious universities, but not to parochial schools.  But 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.[3]

  • Kagan backpedaled from her position in an exchange with Senator Specter during her confirmation hearing for Solicitor General, calling her memo “the dumbest thing I ever read.”[4]
  • She stated:  “I don’t want to say there is nothing of me in these memos . . . But I think in large measure these memos were written in the context of you’re an assistant for a justice.  You’re trying to facilitate his work, and to enable him to advance his goals and purposes as a justice…I was a 27-year-old pipsqueak, and I was working for an 80-year-old giant in the law, and a person who, let us be frank, had very strong jurisprudential and legal views…”[5]
  • This response is not reassuring for two reasons.
    • First, while Kagan attributes the opinions in her memo to Justice Marshall, the express language in the memo states:  “I (Kagan) think the (district court) got the case right.” Kagan does not argue that, based on Marshall’s past opinions, he should support the lower court’s decisions – Kagan states that she agrees with the lower court.
    • Second, it is disconcerting that as a clerk for a Supreme Court justice, she thought it was her role to manipulate Constitutional law to “advance his goals and purposes.”  This raises the troubling question of what she will expect from her own clerks as a Supreme Court justice – will she ask them to brief her on the law, or will she ask them to tailor their recommendations to “advance her goals?” (And what would be her goals as a Justice – apply the Constitution or “advance justice” according to her own personal ideas?)
  • Kagan again dodged her previous writing in response to follow-up questions from Senator Sessions:

“I indeed believe that my 22-year-old analysis, written for Justice Marshall, was deeply mistaken. It seems now utterly wrong to me to say that religious organizations generally should be precluded from receiving funds for providing the kinds of services contemplated by the Adolescent Family Life Act. . .”

However, she then clarified:

“As that Court recognized, the use of a grant in a particular way by a particular religious organization might constitute a violation of the Establishment Clause – for example, if the organization used the grant to fund what the Court called ‘specifically religious activity.’. . .”[6]

  • Again, this response gives little reassurance about how Kagan would interpret future statues.
    • Kagan may have modified her views on the programs under the AFLA; however, given that she once stated that basic services for the needy are “so close to the central concerns of religion, all religious organizations should be off limits from receiving federal funds, the question remains:  what, in her view, constitutes “specifically religious activity”?  In other words, what activity would she say is “too religious” for an organization to do using federal funds?


Elena Kagan has backpedaled from her 1987 statement that religious organizations should not receive federal funds to perform humanitarian activities.  Her original statement, however, raises deep concerns that she adheres to a judicial philosophy that requires an oceanic division between state and religious organizations—a philosophy that was not envisioned by our Country’s founders and is not embraced by the current Court.  It also raises the concern that she will be an activist Justice who directs her clerks to craft arguments that fit her personal agenda.

[1] Elena Kagan, Memo to Justice Thurgood Marshall on Kendrick v. Bowen (1987) (Reproduced from the Collections of the Manuscript Division, Library of Congress) (hereinafter, “Marshall Memo”).

[2] 487 U.S. 589 (1988).

[3] Marshall Memo.

[4] The Nomination of Thomas Perrelli to be Associate Attorney General; The Nomination of Elena Kagan to be Solicitor General of the United States, 111th Cong. 10 (2009).

[5] Id. at 11.

[6] Questions for the Record for Elena Kagan Submitted by Senator Jeff Sessions, 111th Cong. (2009).