On Monday I posted about Elena Kagan’s written answers to the Senate Judiciary Committee in connection with her nomination for Solicitor General.

I noted that while Kagan evaded and talked around many questions, which is all too typical for a nominee, Kagan did not avoid the question of whether there is a constitutional right to same-sex marriage:

“There is no federal constitutional right to same-sex marriage.”

In response to my post, a number of commentators, including Allahpundit and Ann Althouse, reasonably asserted that maybe Kagan meant that there was no such right now, but could or should be in the future. In other words, it depended upon what the meaning of “is” was.

Less reasonable was the attack on me by Maggie Gallagher at National Review Online, who accused me of being “shameful” and deceptive and ignorant. (Not for nothing, but the link in Gallagher’s post purporting to show that Kagan supported “marriage equality” was misleading because it said no such thing.)

Less acerbic was Ramesh Ponnuru also at NRO, who did not question my good faith, but did point out that Kagan had clarified this comment in a later letter, which was quoted in a post by Ed Whelan.

In a March 18, 2009 letter (embedded below, at pp. 11-12), which is not publicly available but which Whelan kindly provided to me, Kagan supplemented her written answers at the request of Arlen Specter. Here is the language in the letter seized upon by my critics to show that Kagan really didn’t mean what she said, and really just was opining as to the current state of the law:

Constitutional rights are a product of constitutional text as interpreted by courts and understood by the nation’s citizenry and its elected representatives. By this measure, which is the best measure I know for determining whether a constitutional right exists, there is no federal constitutional right to same-sex marriage.

These sentences do make it seem as if Kagan walked away from her prior written statement that “[t]here is no federal constitutional right to same-sex marriage.”

But these sentences are not the full supplemental response. Immediately preceding these sentences was the following language:

I previously answered this question briefly, but (I had hoped) clearly, saying that “[t]here is no federal constitutional right to same-sex marriage.” I meant for this statement to bear its natural meaning.

When the full supplemental statement by Kagan is read in context, there is nothing to suggest that Kagan was walking away from her written statement that there is no federal constitutional right to same-sex marriage.

Of additional interest is that when the Massachusetts Supreme Court found a state constitutional right to same-sex marriage, 18 Harvard Law School professors signed onto an amicus [i.e., friend of the court] brief supporting that ruling. But not Kagan.

The language in Kagan’s initial and supplemental written answers to the Judiciary Committee was quite clear. Despite all the state court rulings under state constitutions, despite the enormous social changes which had taken place, despite whatever her personal beliefs might be, Kagan was unequivocal twice that “[t]here is no federal constitutional right to same-sex marriage.”

Was Kagan lying, as some commenters to my prior posts suggested, and she will change her mind once on the bench? There is no way of telling for this, or any other nominee.

Was Kagan playing word games over what the word “is” means? It wouldn’t be the first time someone had done that. After all, Kagan did work in the Clinton administration.

These all are fair questions for the confirmation hearings. But at least Kagan already is on record with a position on same-sex marriage and the Constitution, unlike almost every other issue about which she has been silent.

Having gone on record twice in writing on the issue of same-sex marriage, Kagan should not be permitted to refuse to answer.

And if Kagan’s answer is that “it depends on what the meaning of ‘is’ is,” then that will tell us everything we need to know about the nominee.

Elena Kagan March 18, 2009 Letter to Arlen Specter by Legal Insurrection

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Related Posts:
Will Kagan Dispute What The Meaning Of “Is” Is?
Supreme Irony – Kagan Nomination Ends Gay Marriage Hopes

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