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FWIW – Kagan 2009: “There is no federal constitutional right to same-sex marriage”

FWIW – Kagan 2009: “There is no federal constitutional right to same-sex marriage”

That’s the statement Elena Kagan made back in 2009 when she was going through confirmation proceedings to become Solicitor General (emphasis added):

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.

It’s an answer she stood by at the time in a follow up statement.

I was told when I posted about this during Kagan’s confirmation hearings to the Supreme Court that I was hopelessly naïve (or worse) to think she meant anything more than a statement of the law at that time, and that she would find a way not to be held to that statement when the issue came to the Supreme Court.

I don’t think that’s a fair reading of her statements to the Senate Judiciary Committee in 2009, but I also think it’s probably a fair reading of what her position will be in the cases to be argued this week.

She will say that things have changed.  Or evolved.


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She is evolving as we speak, just like ObamaClaire McCaskill. I have all but given up hope anyone appointed by our side will evolve to positions the right finds agreeable.

Do you have any ideas what is happening with Fisher and SCOTUS decision to hear the Michigan case?

I dunno…

There are some Supreme tea-leaf readers who predict the Court will punt this to the states, with even Ruth Badder Ginsburg voting along those lines.

Actually, that is not a bad place to leave it, as should have been done with Roe.

    Mary Sue in reply to Ragspierre. | March 25, 2013 at 5:59 pm

    The tea leaf readers are usually wrong but if SCOTUS punts to the states that wouldn’t be a bad outcome. Making gay marriage the next abortion football is a disaster but the left won’t hear of that. I made the mistake of watching MSNBC today and it was one long parade of pundits making the case the rights of a minority shouldn’t be left to the voting whims of the public.

    There is going to be heavy duty pressure in the media for the court to find a constitutional right to marriage. They already know the tactic works as we witnessed during the ObamaCare deliberation. The left is looking to this case the way we were looking to Obamacare last year. The left should build an altar to Justice Roberts if hands them another win. I don’t personally think I can forgive his awful decision last year no matter what he does from here on out.

      Agreed — the point that Roe was a long-term disaster for abortion supporters should be made again and again.

      Which is better: For the Supreme Court to discern a right to gay marriage RIGHT NOW!!11!1!, or the Court to wait until the majority of states have established that right 5-10 years from now.

      The first would, like Roe, leave positions entrenched and be a wedge issue for decades. The second, like Loving, would simply ratify the popular decision and be rather uninteresting 2 days later.

      Of course, some people find those wedges useful.

    Rags, the problem is they CAN’T punt it to the states because of “Full faith and Credit”. Too many benefits, etc. depend on marital status at all levels, and that clause has to be interpreted on whether it applies depending on where you got hitched.

“Oh, there is is!”

[…] Jacobson at Legal Insurrection finds this gem from them-Solicitor General, now Supreme Court associate justice, Elena Kagan from back in […]

Anon Y. Mous | March 25, 2013 at 5:53 pm

When speaking to people, especially lawyers, about what the constitution says, it is important to attempt to get them to qualify their remarks. Are they speaking about their belief about what the constitution actually says and what they believe is the correct way to interpret it, or, are they speaking about what the current state of play is (based on prior SCOTUS opinions, how is the constitution being interpreted at this point in time?

She will says she was answering in the latter mode, but now that she is on SCOTUS, it is more appropriate for her to use the former approach.

I agree. Just as with everything else brought to us by The One, all statements come with an expiration date.

nordic_prince | March 25, 2013 at 6:05 pm

That was then. This is now. Someone should take one of those “Darwin” car ornaments and attach Kagan’s visage to it.

Not evolved, which is a chaotic change. Not change, without a qualifier. It will be progressive, which is incremental, monotonic change. Forward to dysfunctional convergence!

If there’s a right to marry -anyone- could someone marry their pet, say, in order to bestow social security survivor benefits on the cat, or get a joint income tax return rate? If there’s a same-species requirement, but no even theoretical procreational requirement, why couldn’t single people marry same-sex siblings (no risk of genetic issues here) in order to bestow these taxpayer-provided benefits?

On what basis could the argument against polygamy stand? (Certainly not the administrative hassle and cost to the taxpayer, if what we’re talking about isn’t fundamental associational rights but the ability to obtain arbitrary government-provided benefits.)

I really hope that the Supreme Court doesn’t go through a twisted and strained exercise in order to find this “right to marry” that will forever distort reason and precedent in all kinds of unforeseen iatrogenic ways. When Loving was decided, the idea of same-sex people marrying was so not on the radar.

We have become a crazy society, in little cumulative increments, partly attributable to the limits of language.

If you want to destroy this country, just undermine it’s moral and religious foundation. Seems they are doing a great job of that these days:

“Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports. In vain would that man claim the tribute of patriotism who should labor to subvert these great pillars of human happiness, these firmest props of the duties of man and citizens. The mere politician, equally with the pious man, ought to respect and to cherish them. A volume could not trace all their connexions with private and public felicity. Let it simply be asked, Where is the security for property, for reputation, for life, if the sense of religious obligation desert the oaths, which are the instruments of investigation in Courts of Justice?

And let us with caution indulge the supposition that morality can be maintained without religion. Whatever may be conceded to the influence of refined education on minds of peculiar structure, reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle. It is substantially true, that virtue or morality is a necessary spring of popular government. The rule, indeed, extends with more or less force to every species of free government. Who, that is a sincere friend to it, can look with indifference upon attempts to shake the foundation of the fabric?”

(Source: George Washington, Address of George Washington, President of the United States . . . Preparatory to His Declination (Baltimore: George and Henry S. Keatinge), pp. 22-23. In his Farewell Address to the United States in 1796.)

I’m afraid the dike’s gonna break this time around.

Perhaps Kagan will change her position after discussing the matter with a ‘wise Latina’. Cause after all, ‘wise Latina’s’ are …. wise.

I recall Kagan making statements during the confirmation hearings (under oath) that were demonstrably at variance with the record (i.e. false). So, stating a opinion that she planned to “change” in the future would certainly not be outside her capacity or inclination.

    Radegunda in reply to Radegunda. | March 25, 2013 at 10:27 pm

    Oops, I was thinking of Sotomayor on the untrue statements. (Sorry, Elena. I really am.) But there’s nothing unusual about a leftist making an insincere statement when it’s expedient.

      Henry Hawkins in reply to Radegunda. | March 25, 2013 at 10:52 pm

      The US left loves Islam because they love the concept of taqqiya (being allowed to lie if you feel persecuted or threatened, you know, like during a Senate confirmation hearing or election).

Does this opinion make Justice Kagan a bigot?

[…] administration. According to William Jacobson at Legal Insurrection, who posted this piece on March 25, this is what she had to say about gay […]

[…] administration. According to William Jacobson at Legal Insurrection, who posted this piece on March 25, this is what she had to say about gay […]

[…] administration. According to William Jacobson at Legal Insurrection, who posted this piece on March 25, this is what she had to say about gay […]

[…] administration. According to William Jacobson at Legal Insurrection, who posted this piece on March 25, this is what she had to say about gay […]

[…] have been if Politico did their homework and resurrected Kagan’s past comments about gay marriage from 2009, when she was awaiting confirmation to the post of solicito general and she insisted in the answer […]

[…] Kagan 2009: “There is no federal constitutional right to same-sex marriage” That’s the statement Elena Kagan made back in 2009 when she was going through confirmation proceedings to become Solicitor General […]