The Senate Judiciary Committee has now voted to confirm Elena Kagan, and her nomination to the Supreme Court has gone to the full Senate. The committee hearings explored Elena Kagan’s mistreatment of military recruiters when she was dean of Harvard Law School. She violated a federal law known as the Solomon Amendment by refusing to cooperate with the recruiters. This was done to protest another federal law (signed by her former boss, President Bill Clinton) that excludes open homosexuality from the military.

In 2003, Kagan declared that the military policy on homosexuality is “a moral injustice of the first order.” This is plainly absurd. Slavery was “a moral injustice of the first order.” The Holocaust was “a moral injustice of the first order.” Maintaining good order, morale, discipline and unit cohesion in the military, by setting a standard for sexual behavior higher than the one implemented by Harvard for its law students, does not fit into the same category.

However, before individual senators vote on her nomination, they should examine another sweeping declaration of principle endorsed by Kagan that is, if anything, even more startling. It’s found in a 2005 brief filed with the Supreme Court by a group of Harvard Law School professors – including Kagan – that endorsed a challenge to the Solomon Amendment.

The second sentence of the brief states: “We are deeply committed to a fundamental moral principle: ‘A society that discriminates based on sexual orientation – or that tolerates discrimination by its members – is not a just society.'”

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Most in academia have been indoctrinated to believe that homosexuality, like race and sex, is inborn, involuntary, immutable, innocuous and protected by the Constitution. These beliefs about homosexual conduct are all false – objectively, demonstrably false. But they do explain why Harvard Law School itself would adopt a “nondiscrimination” policy based on “sexual orientation,” ensuring that homosexuals may be admitted as students and hired as faculty or staff. They even explain why they would not want the government to engage in “discrimination” as an institution.

But what is startling – and chilling – is the middle clause: “or that tolerates discrimination by its members.” Elena Kagan, Supreme Court nominee, has endorsed the principle that “[a] society … that tolerates discrimination [based on sexual orientation] by its members … is not a just society.”

Let’s think this through. Who are society’s “members”? Most fundamentally, the “members” of a society are the individual human beings who make it up. In the broader sense, though, the “members” of a society could also include all the mediating institutions within it, such as families and churches.

Who is guilty of “discrimination” that is “based on sexual orientation”? Under the Kagan-esque view, anyone who thinks that homosexual conduct is morally wrong “discriminates.” Anyone who believes that homosexual conduct should be discouraged because of its health consequences “discriminates.” Anyone who believes that homosexual conduct is a sin before God according to Scripture “discriminates.”

And what is Elena Kagan’s attitude toward such people? They cannot be tolerated. Not just that their views should not be affirmed and enshrined into law. No, if we even tolerate such “discrimination,” we have ceased to be “a just society.”

This is quite a switch. Usually it is the liberals who are calling us to practice greater “tolerance.” Usually tolerance is seen as a liberal virtue. We are to “celebrate diversity” and “tolerate” even those with whom we sharply disagree.

Our country has a long history of exhibiting a remarkable measure of “tolerance.” Politically, we tolerate liberals and conservatives, Republicans and Democrats, Libertarians and Greens. Historically, we have tolerated everyone from the John Birch Society to the Students for a Democratic Society. Religiously, we tolerate Christians and Jews, Muslims and Hindus, atheists and agnostics.

But, according to Elena Kagan, there is one group of people whom we cannot tolerate – not if we want to remain “a just society.” That group is people who think that men should not have sex with men, and women should not have sex with women.

So, presumably the 49 percent of Americans who believe that homosexual behavior is “morally wrong” cannot be tolerated. The nation’s largest church, the Roman Catholic Church, which teaches that homosexuality is “intrinsically disordered,” cannot be tolerated. The Southern Baptist Convention, the nation’s largest Protestant denomination? Likewise.

According to the First Amendment to the Constitution, individuals and churches have a right to believe and teach that homosexual conduct is wrong – it’s called the “free exercise” of religion. But according to the words Ms. Kagan endorsed, they cannot have such a right, because even to “tolerate” people with such views would make ours “not a just society.”

Under Ms. Kagan’s view, either the First Amendment itself is “unjust,” because it “tolerates” traditional views on sexual morality; or the First Amendment must be reinterpreted to exclude orthodox and Bible-believing Jews and Christians, because such religious views cannot be “tolerated.”

Either interpretation would be chilling.

Another Obama appointee, Chai Feldblum, backed off of her previous endorsement of polygamy when she was appointed to head the Equal Employment Opportunity Commission. Unless Kagan is similarly willing to renounce her own endorsement of “intolerance,” she should not be confirmed to the Supreme Court.


Peter Sprigg is senior fellow for policy studies at the Family Research Council.

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