Elena Kagan criticized a California Supreme Court decision in a memo she wrote as a White House lawyer during the Clinton administration. The case involved a landlord who refused to rent her rental units in two duplexes to unmarried couples because she was religiously opposed to extramarital sex. The owner, Evelyn Smith, did not live on the property. The units were operated exclusively for business and commercial purposes, with income generated from the rentals reported as business income. The California Supreme Court ruled that Evelyn Smith was required to abide by the fair housing laws, which prohibit discrimination against unmarried couples.
The court first held that the First Amendment did not require a religious exemption for Smith from the fair housing laws. Relying on a famous U.S. Supreme Court opinion also named Smith, the California court ruled that Evelyn Smith was obligated to comply with valid and neutral laws of general applicability such as the housing discrimination laws.
The court also dismissed Smith's claim under RFRA, the Religious Freedom Restoration Act, which Congress passed to protest the U.S. Supreme Court's Smith decision. RFRA encourages religious exemptions to general laws. RFRA may require an exemption from the law when religion is substantially burdened. The California Supreme Court ruled that the housing law did not substantially burden Smith's religion because: Smith's religion does not require her to rent apartments, nor is investment in rental units the only available income-producing use of her capital. Thus, she can avoid the burden on her religious exercise without violating her beliefs or threatening her livelihood.
Kagan was offended by the court's reasoning and disappointed that the Solicitor General's office was not filing a brief on behalf of Evelyn Smith to overturn the California ruling. The court's reasoning seems to me quite outrageous, she wrote, almost as if a court were to hold that a state law does not impose a substantial burden on religion because the complainant is free to move to another state. Taken seriously, this kind of reasoning could strip RFRA of any real meaning.
Taken seriously, Kagan's memo sends the disturbing message that she favors religion over the antidiscrimination laws. As federal Smith explained, a nation of laws needs religious believers to follow the laws as other citizens do. Equality cannot hold if religious citizens are free to discriminate in housing or hiring. Will Justice Kagan rule that religious organizations may receive federal funding even if they discriminate in hiring, an issue that will eventually get to the Supreme Court?
Kagan also missed the real legal issue involved with RFRA; the Supreme Court later declared RFRA unconstitutional as applied to state governments like California. Unfortunately she was too focused on religion to pay attention to the law.