In a post early this morning, I noted that in written answers to questions in connection with her confirmation hearings for Solicitor General, Elena Kagan wrote:

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

In response to my post, Allahpundit (here and here), Ann Althouse and Darren Hutchinson suggest that Kagan merely was opining on the state of the law at the time of the question, and that Kagan’s answer left open the possibility of Kagan finding that there should be such a right, or alternatively, merely expressing the view that there had been no Supreme Court case holding that such a right existed.

These interpretations would be consistent with a judicial philosophy which permitted judges to find rights based on changing societal circumstances. This concern over judicial philosophy makes senses in the abstract, but not in the context of this specific question, as I discuss below.

I also understand the concern over what Kagan meant by the word “is” in the sentence.

Althouse nostalgically embeds William Jefferson Clinton’s famous dispute over what the meaning of “is” is. Here is a more complete video, in which Clinton is explaining (at 1:45) what “is” means in the context of a statement in an affidavit regarding his relationship with Monica Lewinsky:


Again, in the abstract Kagan may attribute various meanings to the words “there is no.”

But Kagan’s answer was not in the abstract. The answer was in response to a specific written question, and Kagan had time to carefully answer the question in writing after deliberation and consultation.

The question was (emphasis mine):

Do you believe that there is a federal constitutional right to samesex marriage?

The question, unlike many other questions in the questionnaire, was not focused on the current state of the law. The question was what Kagan believed.

The unambiguous nature of the answer also was clear because Kagan did not decline to answer, as she did in the following question seeking her opinion as to Massachusetts law; in that latter question Kagan said “I have never studied the Massachusetts Constitution, judicial interpretations of that document, or the SJC’s decision, so I do not have an informed view.”

For Kagan to take the position that her answer left open the possibility that she merely was making a statement as to the present state of the law as to gay marriage, and not what she believed, would represent a clear deception.

A more innocent explanation could be excused if this answer was given at a live hearing, in which the specific wording of the question may not have been clear in the context of the hearing room.

But these were written answers to written questions, and Kagan was extremely careful in each and every one of her answers. Kagan could have couched her answer in terms of the current state of the law, but she did not.

If Kagan pulls an “it depends on what the meaning of ‘is’ is” in explaining her answer, that would tell us far more about whether she should be confirmed than the substance of her position on gay marriage.

I prefer to believe that Kagan understood the plain wording of the question, and that the plain wording of her answer was what it was.

I look forward to the hearings on this issue.

Update: Allahpundit links to a column by Ed Whelan which contains the following sentences from a March 18, 2009 letter from Kagan to Arlen Specter:

“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.”

I’m trying to get a copy of the full letter, but the quoted language makes it appear that Kagan was deceptive and deliberately non-responsive in her original answer to the Judiciary Committee. Not good. The clarification does not contradict the unambiguous original answer to the Judiciary Committee, but does appear to leave Kagan wiggle room for the future.

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.

Here it is: Kagan Said She Meant What She Said About Gay Marriage

Related Posts:
Supreme Irony – Kagan Nomination Ends Gay Marriage Hopes
Why Do They Hate Elena Kagan?
So Why Am I Already Defending Elena Kagan?

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