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New Kagan Files Handed Over to Congress

Memos turned over to Congress Friday show Supreme Court nominee Elena Kagan at times took a broad view of individuals' right to religious expression during her tenure as a White House counsel to former President Bill Clinton.

The papers reveal that Kagan in 1996 helped draft an executive order detailing federal employees' rights to express their religion in the workplace. She also suggested the Supreme Court should side with a California landlady who argued her religious beliefs were being restricted by a state law.

The documents were obtained by The Associated Press. They're a small part of a roughly 40,000-page batch of files to be made public Friday by the William J. Clinton Presidential Library in Little Rock, Ark.

The California case involved a law barring housing discrimination based on marital status. The landlady refused to rent to unmarried couples because of her religious beliefs opposing sex outside of marriage.

In her memo, Kagan criticized as "quite outrageous" a finding by federal judges that the statute didn't stifle the landlady's religion because she could make a living another way.

Kagan said that reasoning was "almost as if a court were to hold that a state law doesn't impose a substantial burden on religion because the complainant is free to move to another state."

She questioned the decision by then-Solicitor General Walter Dellinger not to weigh in on the case, Smith v. Fair Employment Housing Commission, and wrote that "there is an argument to be made for urging the Court to review and reverse" the lower court's ruling against the landlady.

The proposed executive order she helped draft "recognizes constraints" on religious expression, Kagan wrote, but "tries to show ... that within these constraints, there is substantial room for discussion of religious matters."

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