Many assume that if confirmed as a Supreme Court justice, Elena Kagan’s votes on the Court will come out pretty much the same way as those of her predecessor John Paul Stevens. But two separate reports issued Wednesday suggest that Kagan may part company with Stevens in cases involving religious liberty. The reports highlight her views on the Establishment Clause and the Free Exercise Clause of the First Amendment, suggesting she may chart a different course.
In one report, scholar Melissa Rogers suggests Kagan could “move the Court closer to reinvigorating the Free Exercise Clause and thus closer to providing additional protection for the peaceful practice of all faiths.” Her study, issued by the Brookings Institution, notes that Justice John Paul Stevens, whom Kagan is set to replace, was an ally of Justice Antonin Scalia when it came to free exercise matters; both approved of generally applicable laws that burdened religious practices, as long as they weren’t aimed at undermining those practices. Stevens joined Scalia’s majority opinion in Employment Division v. Smith, the controversial 1990 decision that gave a “weak reading” of the Free Exercise Clause, as Rogers put it.
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