Later this morning, Elena Kagan will be nominated for the Supreme Court seat currently held by John Paul Stevens.
The meme has taken hold that Kagan is a stealth candidate who has avoided taking positions on important constitutional or other issues throughout her career.
But on one issue of critical importance to the left — the constitutional right to same-sex marriage, Kagan has staked out a very clear and unequivocal position: There is no constitutional right to same-sex marriage.
In the course of her nomination for Solicitor General, Kagan filled out questionnaires on a variety of issues. While she bobbed and weaved on many issues, with standard invocations of the need to follow precedent and enforce presumptively valid statutes, on the issue of same-sex marriage Kagan was unequivocal.
In response to a question from Sen. John Cornyn (at page 28 of her Senate Judiciary Questionnaire), Kagan stated flat out that there was no constitutional right for same sex couples to marry (emphasis mine):
1. As Solicitor General, you would be charged with defending the Defense of Marriage Act. That law, as you may know, was enacted by overwhelming majorities of both houses of Congress (85-14 in the Senate and 342-67 in the House) in 1996 and signed into law by President Clinton.
a. Given your rhetoric about the Don’t Ask, Don’t Tell policy—you called it “a profound wrong—a moral injustice of the first order”—let me ask this basic question: Do you believe that there is a federal constitutional right to samesex marriage?
Answer: There is no federal constitutional right to same-sex marriage.
b. Have you ever expressed your opinion whether the federal Constitution should be read to confer a right to same-sex marriage? If so, please provide details.
Answer: I do not recall ever expressing an opinion on this question.
This doesn’t mean that Kagan opposes gay marriage. But she clearly believes it is a matter for the political process, not a constitutional right.
While it is not clear what view the other Justices have, it is likely that a Kagan on the Court will put an end to any ultimate chance of success in the federal lawsuit lawsuit filed by David Boies and Ted Olson to have California Prop. 8 declared unconstitutional.
Reasonably assuming the four conservative judges share Kagan’s view, there now will be a definite majority on the Court against recognizing a constitutional right to gay marriage.
In California, gay marriage is dead … unless and until the people of California vote otherwise. In other states, the battle again will be at the ballot box or in state court; the federal court doors effectively have been shut. The hope of a nationally recognized right to gay marriage is over.
People who oppose recognizing a constitutional right to gay marriage routinely are called bigots and homophobes in academia and progressive circles. It will be interesting to see if these labels will be put on Kagan.
The ironies are palpable.
Update: Allahpundit (here and here) and Ann Althouse suggest that Kagan merely was opining on the status of the law at the time of the question. I will post separately on this. While I think it is plausible to worry about such word games (i.e., what the meaning of “is” is), such a reading ignores the specific wording of the question, which was whether Kagan “believe[s]” there is such a right. Kagan either was being incredibly deceptive, or she meant what she wrote. Perhaps we’ll find out at the hearings.
My updated post is here, Will Kagan Dispute What The Meaning Of “Is” Is?, including discussion of a March 18, 2009 clarification from Kagan.
Update 5-11-2010 – I have received Kagan’s full supplemental answer, and I believe it supports my original post. I’ll file a new post about it, with an embedded copy, tomorrow.
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