On the eve of the confirmation hearings, Religion Clause has posted numerous stories concerning Elena Kagan's record on religion. Melissa Rogers of Brookings argues that Elena Kagan's appointment to the Supreme Court could mark the first time a critic of the 1990 Smith decision and its weak reading of the Free Exercise Clause replaces a supporter of that decision. This is good news for Rogers, who wants additional protection for religion, but bad news for defenders of the rule of law. Smith requires churches to follow the laws applicable to everyone else. Religious opponents of Smith pretend that Justice Antonin Scalia, the author of Smith, and Justice Stevens, who joined the opinion, undermined the Free Exercise Clause with their ruling that religious groups must obey the law. What is really happening is that the religious opponents of Smith want special rules for religions--exemptions from the antidiscrimination laws, e.g., or special status in local zonings laws.
According to Rogers, although President Obama admires Justice Stevens, given President Obama’s religious freedom commitments, this is one area where he would be likely to see a break with Stevens as a welcome change. This is the danger posed by Rogers, Obama and now Kagan: they start with their commitment to religion and push that commitment so far that they value religion more than the rule of law. They pretend that this is a defense of religious liberty, but it is really religious tyranny to exempt the country's religious citizens from the law. The Secular Coalition of America has listed all the reasons to be worried about Kagan's nomination. If the Senate were really committed to its constitutional duty, it would ask Kagan if she is ready to defend the Constitution instead of religion.