Elena Kagan, whose nomination to the U.S. Supreme Court likely will be before the full U.S. Senate for a vote soon, has suggested state regulations are “little” burden for homeschoolers, according to notes she made on a case while she was clerking for Justice Thurgood Marshall.
According to documentation uncovered by the Home School Legal Defense Association, Kagan advised Powell during the 1980s when a court case developed in Ohio in which a Christian family decided to homeschool their child.
The parents were convicted of not getting the superintendent’s permission, and the case was appealed to the U.S. Supreme Court, whose justices refused to intervene.
The charges by the state were for “failing to send their child to school.”
“Throughout the litigation, [petitioners] have challenged the requirement of the Ohio statute that parents seek and receive the approval of the school board superintendent before embarking on a program of home education,” she wrote, citing the free exercise clause.
“This claim must fail,” Kagan wrote. “The [petitioners] here cannot complain that the state has required them to send their children to public [school]; they can only complain that the state has required them to apply for an exemption. … This burden on religious freedom is slight, and the interest of the state is great.
“I cannot see ruling that the statute is unconstitutional on this ground,” she said.
Likewise, the family’s statement that the requirement was unconstitutional because it didn’t have standards to govern a superintendent’s decision also doesn’t present a valid claim, she suggested.
“I don’t think that this claim is particularly strong,” she wrote.
HSLDA noted that during her Senate hearings, Kagan was asked about the decision.
According to a transcript, Kagan was asked about how she approved of a ruling that said religious organizations engage in “indoctrination” in their programs and admitted that was a mistake.
“I wrote more than 500 certiorari memos for Justice Marshall over the course of the term I clerked for him, more than two decades ago. I am sure that more than one was mistaken,” she said.
Then the question about the Ohio case was raised.
“What did you mean when you described the parents as having ‘little sympathy with the secular world?” she was asked.
But she evaded answering.
“I would have to read the parents’ petition to know precisely what I meant by this phrase,” she said. “The lower court decision indicates that the parents refused all contact with administrators of the public school system. As that decision noted, the parents believed ‘that their religious beliefs not only required them to educate’ their daughter, but also forbade them from seeking the school superintendent’s permission to do so.”
The HSLDA report said Kagan “went on to imply that the family’s expression of religion had not been infringed upon by the school district because the family was not being compelled to attend public school. She said that asking permission to homeschool was reasonable. The Schmidt family objected to asking for permission to homeschool because of their religious beliefs.”
“During Ms. Kagan’s confirmation hearings, Sen. Jeff Sessions asked Ms. Kagan what she meant in her memo. Kagan didn’t back away from her memo,” the report said.
The report said HSLDA was encouraging its constituents to contact their senators and express opposition to the nomination.
Only days earlier, a public interest organization announced plans to file an ethics complaint to have Kagan disbarred from practicing before the Supreme Court.
Larry Klayman, founder of Judicial Watch and Freedom Watch USA, announced plans for the complaint, alleging Kagan altered an official scientific report used as evidence by the Supreme Court to persuade the justices to overturn bans on partial-birth abortion.
As WND reported, dozens of pro-life organizations are already asking the Senate to investigate Kagan’s 1997 amendment to an American College of Obstetricians and Gynecologists report, which was then used by the Supreme Court as justification for overturning Nebraska’s partial-birth abortion ban in 2000.
In her confirmation hearings, Kagan defended the amendment, saying, “My only dealings with (the College) were about talking with them about how to ensure that their statement expressed their views.”
Several analyses have concluded, however, that Kagan’s amendment dramatically changed the meaning of the organization statement, and court records show the statement was passed on to the Supreme Court as official scientific opinion, even though the organization’s panel of scientists never approved Kagan’s wording.
Klayman told WND he believes Kagan’s behind-the-scenes work constitutes “conspiracy to defraud the Supreme Court,” and he intends to take the evidence that has been compiled by the pro-life groups to file a complaint before the clerk’s office of the U.S. Supreme Court, seeking to have Kagan disbarred as a practicing lawyer in front of the Supreme Court. .
Working to stop Kagan’s nomination
While the pro-life groups are petitioning U.S. senators to investigate Kagan’s amendment and Klayman is turning to the Department of Justice, other organizations are drafting efforts to pressure the Senate into rejecting Kagan’s nomination outright.
Randy Thomasson, president of SaveCalifornia.com, is offering constituents a “take action” option on his website, while a “Stop Kagan Campaign” also is under way.
“We will continue to put every member on notice – Republicans and Democrats – that a vote for Kagan is a vote against the U.S. military, a vote against the Constitution, a vote against free speech and a vote for ultra-partisan extremism and activism on the bench,” said Joseph Farah, editor and chief executive officer of WND who is orchestrating the “Stop Kagan” effort that has generated tens of thousands of individual letters to senators.
The “Stop Kagan Campaign” allows any American citizen to generate 100 individually addressed letters to every U.S. senator, each including the name of the sender and all delivered by FedEx for the low price of just $24.95.
According to Farah, Kagan disqualified herself from serving on the Supreme Court with her statement under oath that she has no view of “natural rights.”
“In all my years of observing Washington, I don’t think I’ve ever been more stunned and disappointed by the testimony of a Supreme Court nominee than I was with Elena Kagan,” said Farah. “This is someone, who, from her own testimony, doesn’t believe in the Declaration of Independence, which we just celebrated and commemorated for the 234th time in our nation’s history. This is someone who claims she doesn’t have a view about ‘natural rights’ – those that real Americans believe are unalienable and God-given.”
Farah is asking all of his constituents to join his “Stop Kagan Campaign”, which delivers personalized, individually addressed, anti-Kagan letters to all 100 U.S. senators by FedEx for only $24.95.
The statements by Kagan came in an exchange with Sen. Tom Coburn, R-Okla. Farah said most of the press failed to cover her responses, which he deemed as newsworthy as any she made during the hearings:
Coburn: Do you believe it is a fundamental, pre-existing right to have an arm to defend yourself?
Kagan: Senator Coburn, I very much appreciate how deeply important the right to bear arms is to millions and millions of Americans. And I accept Heller, which made clear that the Second Amendment conferred that right upon individuals, and not simply collectively.
Coburn: I’m asking you, Elena Kagan, do you personally believe there is a fundamental right in this area? Do you agree with Blackstone [in] the natural right of resistance and self-preservation, the right of having and using arms for self-preservation and defense? He didn’t say that was a constitutional right. He said that’s a natural right. And what I’m asking you is, do you agree with that?
Kagan: Senator Coburn, to be honest with you, I don’t have a view of what are natural rights, independent of the Constitution. And my job as a justice will be to enforce and defend the Constitution and the laws of the United States.
Coburn: So you wouldn’t embrace what the Declaration of Independence says, that we have certain God-given, inalienable rights that aren’t given in the Constitution that are ours, ours alone, and that a government doesn’t give those to us?
Kagan: Senator Coburn, I believe that the Constitution is an extraordinary document, and I’m not saying I do not believe that there are rights pre-existing the Constitution and the laws. But my job as a justice is to enforce the Constitution and the laws.
Coburn: Well, I understand that. I’m not talking about as a justice. I’m talking about Elena Kagan. What do you believe? Are there inalienable rights for us? Do you believe that?
Kagan: Senator Coburn, I think that the question of what I believe as to what people’s rights are outside the Constitution and the laws, that you should not want me to act in any way on the basis of such a belief.
Coburn: I would want you to always act on the basis of the belief of what our Declaration of Independence says.
Kagan: I think you should want me to act on the basis of law. And that is what I have upheld to do, if I’m fortunate enough to be confirmed, is to act on the basis of law, which is the Constitution and the statutes of the United States.
“This woman apparently thinks our rights descend from our Constitution, which is crazy,” said Farah. “The Constitution is there to protect our unalienable, God-given human rights – not to define our rights or to invent them.”
The campaign to deny Kagan confirmation in the Senate, however, began long before the hearings.
“This woman, as president of her university, banned the U.S. military from recruiting on campus,” Farah reminds. “Just contemplate rewarding that kind of vehemently anti-American action with a lifetime appointment to the Supreme Court. Elena Kagan must be stopped.”
He devised the “Stop Kagan Campaign” based on previous successes in generating heavy volumes of mail to members of Congress.
“It’s a phenomenal bargain,” says Farah. “It makes it easy for you to sound off on this historically bad nomination. It’s a small investment. And I am convinced that if enough Americans take advantage of it, Kagan will be stopped – even by this Senate.”
But time is short, Farah says. America is distracted by a floundering economy, a disastrous oil spill and a government that creates new crises on a daily basis, he explains.
Calling Kagan “an activist who wants to govern from the bench,” Farah says there’s a way to give senators a “spine transplant” and prepare them for the most contentious confirmation fight since Clarence Thomas.
“Kagan is a radical antimilitary and proabortion zealot,” said Farah. “This selection by Barack Obama reveals once again his extremist agenda of leaving America undefended, elevating alternative lifestyles to sainthood and exterminating the most innocent human life with reckless abandon and persecuting anyone who tried to stand in the way. In a nutshell, that’s who Elena Kagan is.”
Farah’s goal is to inundate senators with 100,000 letters calling for her rejection for a lifelong appointment to the U.S. Supreme Court.
The letter campaign is based on previously successful efforts in which nearly 10 million “pink slips” were delivered to members of Congress opposing nationalization of health care, cap-and-trade legislation, hate-crimes laws and other bills, as well as the current campaign to stop amnesty in the U.S. Senate.
The letter to the senators reads:
“In a few months, the American people will have a chance to speak at the polls again. Almost every analyst and every public-opinion survey suggests the electorate is angry about the direction of the country. I strongly urge you not to show contempt for the will of the people and the Constitution by confirming the Supreme Court nomination of Elena Kagan.
“Kagan is not what Americans want and she is not what the country needs.
“At a time when federal central control is strangling the American economy, she calls for more regulatory authority not just in Washington, but for the president himself.
“At a time when American security is facing internal and external threats and our nation is still engaged in two foreign wars simultaneously, she advocates banning military recruitment on campuses because of her compulsion to see open homosexual behavior flaunted in the ranks.
“At a time when Americans have been stripped of their ability to write their own laws protecting the lives of the unborn, she advocates the creation of task forces to investigate and prosecute peaceful pro-life activities.
“At a time when Americans are recognizing the unique blessings of their Constitution, she advocates the consideration of foreign laws in shaping Supreme Court rulings.
“For all of these reasons and more we will surely learn about in the days ahead, please reject the nomination of Elena Kagan.”
As part of that work, Kagan reviewed the arguments for Marshall and suggested an outcome.
“[Petitioners] are self-described born-again Christians who adhere to a literal interpretation of the Bible and have little sympathy with the secular world,” she wrote.