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News, U.S. Supreme Court

Kagan’s Anachronistic Views in Bowen v. Kendrick

by AUL Legal Staff

In 1988, the Supreme Court, in its landmark decision in Bowen v. Kendrick,  reaffirmed the important constitutional principle of equal access of religious organizations in government-funded social welfare programs.

At issue in Kendrick was the constitutionality of the Adolescent Family Life Act (AFLA), which Congress had enacted in 1981, and reauthorized in 1984, to provide grants for services and research in the area of premarital adolescent sexual relations and pregnancy.

Americans United for Life was co-counsel in the Supreme Court for an intervening party in defense of the constitutionality of the AFLA and of the participation of religiously-affiliated organizations.

Congress considered and allowed religious organizations to apply for grants in the “simple recognition that nonprofit religious organizations have a role to play in the provision of services to adolescents.”

Given the long history in America of churches and religiously-affiliated organizations, like the Salvation Army, sponsoring social welfare programs for immigrants, orphans, and the poor, it may surprise some that there was any legal uncertainty about the participation of religiously-affiliated organizations in government-funded social welfare programs just 22 years ago.

But the ACLU pushed an extreme version of the Establishment Clause when they filed suit in 1983 to throw out the AFLA and exclude any religiously-affiliated organization from involvement.

Adopting that extreme interpretation of the Establishment Clause, the district court struck down the AFLA and declared that the involvement of religious organizations as AFLA grantees was unconstitutional, barring their involvement.

The decision threatened hundreds of federal, state and local programs in which religiously supported, inspired and affiliated organizations are involved in carrying out charitable social welfare activities.

Thankfully the Supreme Court upheld the AFLA.

That’s why it’s worrisome that Elena Kagan wrote a completely contradictory memo about Kendrick while a law clerk for Justice Marshall.

In her memo, Kagan wrote:

“I think the DC 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.…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.” (emphasis in original)

In her nomination hearing to be Solicitor General on Feb 10, 2009, in what seems like a pre-arranged colloquy to quickly side-step her Marshall memo, Senator Arlen Specter asked Kagan about her statement, “It would be difficult for any religious organization to participate in such projects without injecting some kind of religious teaching.”

Kagan replied that “I looked at it and I thought it was the dumbest thing I’ve ever heard.”

Specter cut off Kagan’s next sentence with the surprising statement, “You don’t have to go any further.”  Probably the only time in Senate history that a Senator didn’t want an answer to his question.

Hopefully, some Senators in the confirmation hearings will have a greater intellectual interest in why Kagan wrote such views with such confidence in 1988 but utterly disavowed them with the same confidence in 2009.