Elena Kagan's Inconsistency

05/20/2010 06:06 pm ET | Updated May 25, 2011
  • Sam Sedaei Senior Director of Iran Programs at Nonviolence International, Documentary Producer

Last week, President Obama nominated Solicitor General, Elena Kagan, to be the next Supreme Court Justice. As expected, the Republicans reacted to the nomination the way they were planning to: cluttering the airwaves with a series of attacks and criticisms. Among these has been the criticism that during her time as the Dean of Harvard Law School, Ms. Kagan refused to allow the military to join in on recruitment efforts on campus because of the military's "Don't Ask, Don't Tell" policy that discriminated against homosexuals from openly serving in the military.

At the time, the decision caused a lot of controversy, as it does today, and led to a legal case that went before the Supreme Court. During the court proceedings, Harvard Law School argued that the decision was not due to an animosity specifically targeted toward the military. But rather, the law school was simply abiding by its policy that only permitted employers on campus that did not discriminate on the basis of race, sex, religion and ethnicity to recruit students. This has also been the argument with which the defenders of the Supreme Court nominee have been responding to the most recent criticisms.

At the time, the Supreme Court ruled against the position of the school, saying that "Don't Ask, Don't Tell" was the law of the land, and as long as that remained true, that took precedence over any school policies when the two were in conflict.

However, there is another argument to make against Kagan's position and those who defend her decision, and that has to do with the inconsistency with which Elena Kagan enforced the law school's policy at the time. During her time as dean, the law school singled out the military as the only institution that could not recruit on campus, while allowing a whole host of campus groups and also institutions closely associated with or directly representing religions that openly promote discrimination--and often far worse--against peoples based on religion, sex, ethnicity and other illegitimate factors to recruit on campus.

On gay rights--the same issue on which Harvard Law School blocked military's recruitment on campus--most Christian denominations openly and constantly condemn homosexuality and portray homosexuals as inferior human beings. Christianity isn't much kinder to women either. Leviticus 21:9 reads, ""And the daughter of any priest, if she profane herself by playing the whore, she profaneth her father: she shall be burnt with fire."In another passage, women are declared inferior to men. Corinthians 11:3 reads, ""But I would have you know, that the head of every man is Christ; and the head of the woman is the man; and the head of Christ is God." Judaism's positions on various groups are not much more inclusive than those in Christianity. Orthodox Jewish seminaries aren't much better, refusing to ordain women.

And Islam perhaps as the most shining record of them all. Islam grants women different degrees of rights in just about every arena one can think of, including marriage and divorce, civil rights, legal status and dress code. In An-Nisa 34, Qoran talks about different acceptable forms of beating of women by men in certain circumstances. Likewise, homosexuality is outright banned in most Muslim-majority countries because of the teachings of that faith. The list goes on and on.

An important point to make about all of these positions is that they are not simply historical positions that have long been condemned by reformed versions of these ideologies. Up to this day, not only do sitting leaders of these religions not keep silent on these issues, they actively and passionately promote these values. As Christopher Hitchens astutely puts it in God Is Not Great, organized religion is "the main source of hatred in the world...[v]iolent, irrational, intolerant, allied to racism, tribalism, and bigotry, invested in ignorance and hostile to free inquiry, contemptuous of women and coercive toward children."

The United States' federal government has been at the forefront of defending the rights of its citizens within its borders and implementing policies that, for decades, have moved us closer to the kind of equality that is often nonexistent even in some of the most modern and democratic societies. Unfortunately, at the same time, it has always differentiated between religious institutions and other institutions. While other employers cannot discriminate on the basis of race, sex and religion, religious institutions are allowed to get away with it. So we are legally banned from discriminating against people who subscribe to and actively promote institutions that discriminate.

Not only that, we have made them tax exempt, and legally exempt. During his time as the head of Archdiocese of Munich and Freising, Pope Benedict approved the transfer to therapy of Rev. Peter Hullermann who had committed child abuse not just once, but faced a series of accusations of abuse that extended over two decades. Pope Benedict was aware of specific priest's child molestation, and he took no action to remove the priest or surrender him to authorities and allowed him to return to pastoral duties. As the head of the state of Vatican, he has not done much more to hold child molesters within the church accountable. If it was any other head of a state who would use his position to protect a transnational network of rapists and child molesters, the United States would issue an arrest warrant for him. But the church once again gets a pass.

The problem with keeping silent on these hypocritical positions is that government policies--even in countries where the government is undemocratic--in the long-run often create tacit legitimacy and instinctual acceptance of the values based of which those policies are made. Consequently, the mentality of the church and religion as untouchable and above-the-law institutions gets built into our psyches and becomes so inherent in our thinking that we automatically put religion in a separate category without thinking.

So no, Elena Kagan's position on not allowing the military on campus because of the institution's discriminatory policies is not consistent with her actions. At the time she made her decision, she either was or was not aware of religious institutions' discriminatory policies. If she did not--which is highly unlikely--she should admit that she made a mistake in not applying the school's anti-discriminatory policies to religious institutions. And if she was aware of the discriminatory and often bigoted positions of many mainstream religions, she must admit that she made an active and perhaps political decision to hold religious institutions to a different standard than everybody else.