Kagan, the Court, and Religious Liberty

Here is an op-ed of mine, which appeared in today's edition of USA Today, about the Court's recent (and upcoming) religious-liberty decisions, and about the way that a Justice Kagan should approach such cases.  A bit:

 . . . What does Kagan's embrace of both judicial responsibility and restraint tell us about how she would have approached, or will approach, such cases? We know that she will, in general, be a reliably "liberal" or "progressive" voice on the court, but will she follow in Justice Stevens' footsteps when it comes to religious liberty?

As she told the Judiciary Committee, the First Amendment ensures that religion "never functions as a way to put people, because of their religious belief or because of their religious practice, at some disadvantage with respect to any of the rights of American citizenship." "You are a part of this country," she insisted, "no matter what your religion is." She was right. Our Constitution protects religious liberty and welcomes religion in public life, but the criteria for membership in our political community are secular. Clearly, courts have a role to play in policing these criteria and making sure that "rights of American citizenship" are never made to depend on religious professions or practices.

But what is that role, and how should it be exercised? The ability of unelected judges to identify those government actions that actually "establish" religion is limited, and so is their authority to second-guess others' policy decisions. It is not just the responsibility of judges, but also of legislators, public officials and voters, to be good stewards of our "blessings of liberty" and to guard against political exclusions on religious grounds. . .. 

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