"In Memo, Kagan Took Broad View of Religious Freedom"

"WASHINGTON — As a young White House lawyer, Elena Kagan wrote that it was 'quite outrageous' for the government to force a landlord to rent an apartment to an unwed couple if doing so violated the landlord’s religious beliefs against cohabitation outside the bonds of marriage. . . .

Among the documents were several concerning religious-freedom issues, which are often hotly disputed in Washington. The Aug. 4, 1996, memorandum on the case of the landlord, for example, put Ms. Kagan on the side of advocates for a broader interpretation of religious freedom, even at the expense of an antidiscrimination law.

The case involved a California woman who refused to lease an apartment to an unmarried couple because she considered a sexual relationship outside marriage to be a sin. The California Supreme Court ruled that she violated a state law prohibiting housing discrimination on the basis of marital status.

Ms. Kagan objected to the California court ruling and recommended that the federal government support an appeal to the United States Supreme Court. She noted that the plurality of California justices ruled that the state housing law did not 'substantially burden' the landlord’s religion 'because she could earn a living in some other way than by leasing apartments.'

'The plurality’s reasoning seems to me quite outrageous — 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,' Ms. Kagan wrote. 'Taken seriously, this kind of reasoning could strip RFRA of any real meaning.'

The abbreviation referred to the law’s formal name, the Religious Freedom Restoration Act of 1993. The law was intended to counter a Supreme Court decision permitting states to penalize someone for using the drug peyote, even as part of a religious ritual. While the court did not take the California case that Ms. Kagan wrote about in 1996, it did strike down the religious freedom law’s application to the states in another case the following year."

Here for the rest of this interesting NYT article.