Tuesday, June 15, 2010

Why Religious Conservatives Should Like Elena Kagan

Although Solicitor General Elena Kagan's Senate Confirmation Hearings do not begin for another couple of weeks. The fellows at the Volokh Conspiracy have dug up an interesting memo she wrote in her days in the Clinton White House.

A California landlord had refused to rent to a homosexual citing religious beliefs. The California Court, applying a state nondiscrimination law, said that the Constitution did not provide a religious exception in this instance to the nondiscrimination law. Kagan's memo lambasts the Court's position that the landlord could always be employed in other manners (after she sold the houses!)

Much has been debated about the significance of the conservative professors hired by Harvard Law School during Kagan's tenure as dean. The consensus seems to be that Kagan, although an unabashed liberal, has sympathy for and a willingness to listen to conservative views. How much the sympathy and open ear will translate into conservative votes is uncertain, but this memo is evidence that it may mean more than we think.

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