Possibly as soon as Thursday morning, but certainly by early next week, we will know how the Supreme Court rules on the issue of whether denying same-sex couples the ability to marry violates the U.S. Constitution.

Lyle Denniston at ScotusBlog summarized the case as follows:

Taking on a historic constitutional challenge with wide cultural impact, the Supreme Court on Friday afternoon [January 16, 2015] agreed to hear four new cases on same-sex marriage. The Court said it would rule on the power of the states to ban same-sex marriages and to refuse to recognize such marriages performed in another state….

The Court fashioned the specific questions it is prepared to answer, but they closely tracked the two core constitutional issues that have led to a lengthy string of lower-court rulings striking down state bans. As of now, same-sex marriages are allowed in thirty-six states, with bans remaining in the other fourteen but all are under court challenge.

Although the Court said explicitly that it was limiting review to the two basic issues, along the way the Justices may have to consider what constitutional tests they are going to apply to state bans, and what weight to give to policies that states will claim to justify one or the other of the bans….

I hate trying to predict court rulings, but the political winds have changed dramatically the past few years, so if I had to bet, I’d bet that the ruling is 5-4 for gay marriage. [Warning – my bets tend to be counter-indicators.] Don’t think for a second that politics and public opinion doesn’t influence such historic cases.

I also expect Elena Kagan to be one of the five, based on her comments during oral argument, via NY Times:

Justice Elena Kagan said allowing same-sex marriage would benefit children. “More adopted children and more marital households, whether same-sex or other-sex, seems to be a good thing,” she said.

Mr. Bursch said the bans he was defending did not discriminate based on sexual orientation, which left Justice Kagan puzzled.

“If you prevent people from wearing yarmulkes,” she said, “you know, that’s discrimination against Jews.”…

Near the conclusion of the first argument, Justice Kagan indicated that she hoped the Supreme Court would find a right to same-sex marriage. She said the court has a role in protecting minorities even when majorities made their views known at the polls.

“We don’t live in a pure democracy,” she said. “We live in a constitutional democracy.”

So, before the decision is released, it’s worth revisiting Kagan’s 2009 testimony before the Senate during confirmation hearings on her nomination to be Solicitor General.

In the course of that testimony, Kagan stated:

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

I came under some criticism in May 2010, when Kagan was nominated for the Supreme Court, for taking Kagan at her word.  Claims were made that I took the sentence out of context, was naive, or shamefully deceptive. I’ll plead guilty to being naive, but I didn’t take her sentence out of context, shamefully or otherwise. Matt Vespa’s 2013 post at PJ Media summarizes the back and forth.

Here is the first part of Kagan’s testimony, with context by me:

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.

More context was provided by a letter from Kagan to the Senate Judiciary Committee, again with context by me:

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.

In further defense of my reading of her testimony, I wrote:

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.

Unfortunately, the issue never came up during Kagan’s confirmation hearings to be a Supreme Court Justice.

I know, 2009 was then, this is now.

Then she was a nominee for Solicitor General, now she is an Associate Justice of the United States Supreme Court. Then she was bound to follow the law, now she gets to make it.

Then supporting gay marriage may have sunk her nomination, now public opinion has shifted.

As the Bob Dylan song goes, “for the times, they are evolving.”

All that being said, it is difficult to reconcile Kagan’s full testimony on the issue during her 2009 confirmation hearings for Solicitor General with what we all expect to happen in the next few days, a vote by Kagan to find a “federal constitutional right to same-sex marriage.”


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