Kagan Beat Religious Tests


>Inquiries by the Senate Judiciary Committee into the religious preferences of a judicial nominee would likely be met with condemnation and angry reminders that the Constitution prohibits religious tests for office. But assume an air of innocence and ask a Jewish nominee what she was doing on Christmas, and you'll be applauded for introducing good-natured levity into a rancorous partisan proceeding.  Lindsey Graham must be very pleased with himself.  

Having "signaled his that he was receptive to confirming" Kagan, Robert Draper noted in the New York Times, Graham made clear that he wanted "to make the case that she's a liberal;" and what better way to signal her liberalism than offering a genial reminder to voters back home that she's a Jew (a New York Jew, no less)?  Why else ask what she was doing on Christmas?  Graham "will extract his pound of flesh," from Kagan, Draper observed (in a prescient metaphor). Who knew that his audience would confuse the operation with a borsch belt joke?  "I'm really enjoying the ethnic humor here," Judiciary Committee Chair Patrick Leahy said, displaying what my mother would have called a goyishe kopf.

Kagan's religious sensibilities were attacked more directly by the NRA: "She refused to acknowledge respect for the God-given right of self-defense," NRA Executive Vice-President Wayne La Pierre and lobbyist Chris Cox stated, explaining the NRA's opposition to her confirmation.  I'm sympathetic to assertions of individual Second Amendment rights, although unlike the NRA, I don't consider those rights absolute. I consider them at least potentially limited, as are all other rights, by compelling, countervailing state interests.  And if Kagan is confirmed, she'll be responsible for interpreting the Constitution, not the Bible.  Assuming God exists, and then interpreting His gifts are tasks not included in the Supreme Court's job description - at least not yet.
Sarah Palin believes that we need to "[go] back to what our founders and our founding documents meant. They're quite clear that we would create law based on the God of the Bible and the Ten Commandments. It's pretty simple."  This is indeed a simple view of government, which may be part of its appeal. It requires no nuanced analysis of church and state relations or accommodations of religious and irreligious freedom.  Chip Berlet, a student of the religious right, relates Palin's views to the "theocratic fascism" of Christian Dominionism reflected in the perversely named Constitution Party.  Dominionism doesn't exactly claim a majority following, much less represent an establishment view, (and Palin herself is derided as an establishment figure on the Constitution Party website.)  But the hopes expressed in 2008 (which now seems so long ago) that Americans were having second thoughts about injecting religion into politics or that the culture wars were subsiding appear to have been premature, as the rise of the Tea Party has shown.

Elena Kagan, of course, is no tea party favorite:  "She lacks the experience, she lacks the intellectual capacity for the job, and worst she is a liberal judicial activist - and NOT a constitutional conservative," the Tea Party Express proclaims.  (She lacks the "intellectual capacity?") But, to what I imagine is the president's delight, she is also no favorite of liberal secularists: The Secular Coalition for America (which includes me on its advisory board) has opposed Kagan's nomination, because she "does not appear to embrace the fundamental American principle of church-state separation with the vigor and force of Justice John Paul Stevens," or, they might have added, with the fervor of what she is not -- a stereotypical New York Jew. 

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Wendy Kaminer is an author, lawyer, and civil libertarian. She is the author of I'm Dysfunctional, You're Dysfunctional, and a past recipient of a Guggenheim Fellowship. More

Wendy Kaminer is a lawyer and social critic who has been a contributing editor of The Atlantic since 1991. She writes about law, liberty, feminism, religion and popular culture and has written eight books, including Worst InstinctsFree for All; Sleeping with Extra-Terrestrials; and I'm Dysfunctional, You're Dysfunctional. Kaminer worked as a staff attorney in the New York Legal Aid Society and in the New York City Mayor's Office and was awarded a Guggenheim Fellowship in 1993. She is a renowned contrarian who has tackled the issues of censorship and pornography, feminism, pop psychology, gender roles and identities, crime and the criminal-justice system, and gun control. Her articles and reviews have appeared in The Atlantic, The New York Times, The Wall Street Journal, Newsweek, The American Prospect, Dissent, The Nation, The Wilson Quarterly, Free Inquiry, and spiked-online.com. Her commentaries have aired on National Public Radio. She serves on the board of the Bill of Rights Defense Committee, the advisory boards of the Foundation for Individual Rights in Education and the Secular Coalition for America, and is a member of the Massachusetts State Advisory Committee to the U.S. Civil Rights Commission.

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