The following questions on important religious freedom issues were submitted to the members of the Senate Judiciary Committee for their consideration as they prepare their questions for Solicitor General Elena Kagan’s Supreme Court confirmation hearings. Interfaith Alliance also joined a coalition of several religious and secular organizations in submitting additional questions to the Committee.
Questions on Religious Freedom for the Supreme Court Confirmation Hearing of Solicitor General Elena Kagan
1 What role, if any, does your religious faith play in your judicial philosophy?
2 During your confirmation hearing for Solicitor General, you stated, with regard to charitable choice, “But I think it incorrect (or…‘the dumbest thing I ever heard’) essentially to presume that a religious organization will use a grant of this kind in an impermissible manner.” Could you please clarify whether, in your opinion, direct government funding of houses of worship that perform social services but cannot or will not separate their explicitly religious activities violates the Establishment Clause?
3 In situations where the Free Exercise Clause conflicts with the Establishment Clause, is there precedent for mitigating the conflict? Do you believe one clause trumps the other?
4 While a presidential candidate, John F. Kennedy promised the American people that, if his religious faith ever came into conflict with his obligations to the Constitution, he would resign his public office. If a similar conflict arose for you, how would you resolve it?
5 Thomas Jefferson described the First Amendment as creating “a wall of separation between church and state.” Would you agree with his assessment? How else might you describe your judicial philosophy concerning the Establishment Clause?
6 There have been ongoing issues regarding and shifting Court precedent in cases involving religious displays on public grounds, such as the many cases around government displays of the Ten Commandments and Salazar v. Buono. Where do you draw the line on what is and is not appropriate? What are the competing values and constitutional quandaries that arise when religious symbols or passages considered by many to be sacred are erected on public land?
7 Does the Internal Revenue Service have the legal and constitutional authority to revoke a house of worship’s tax-exempt status if that house of worship has engaged in improper political activities, such as making an official endorsement of a political candidate?
8 The Supreme Court recently limited the legal standing of taxpayers to challenge government funding of religion. Do you believe this development unjustly limits the reach of the Establishment Clause and conveys a lack of respect to members of minority religious traditions and atheists who object to such government funding of religion?