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Wednesday, May 12, 2010

Kagan Said She Meant What She Said About Gay Marriage

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

Related Posts:
Will Kagan Dispute What The Meaning Of "Is" Is?
Supreme Irony - Kagan Nomination Ends Gay Marriage Hopes

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  1. Forget her gay marriage issue, did you read her side-stepping gun rights?

    There is the key to her time on the bench, a living document lover.

  2. I thought Obama did not support gay marriage. I am pretty sure he doesn't like the idea of average rubes owning guns. I think archer 52's observation is astute.

    As a matter of fact, I think her thoughts and interpretation of the original 10 amendments would be more critical in determining her future decision about the issue. Obama will be sure to try to rush this pick through, so I'd triage the issues to focus on. Her sexuality, views on gay marriage are shadowed by things much more important.

    I see that Cornell Law School has an annotated US Constitution online. I think I'll check it out.

  3. Professor:

    The Constitution was not written to define the rights of man. Rather, it was written to define and delimit the powers of the Federal government. It was the fear that the Constitution would be interpreted as the former rather than the latter that led the document's creators to omit a Bill of Rights. They argued that an all-inclusive listing of man's rights in all possible future situations was not practical -- and that what was needed, instead, was simply a limiting definition of government's powers.

    A bill of rights was added to the Constitution after its ratification -- and the ninth amendment was specifically included to address the concern that the Constitution would be viewed as a limiting definition of the rights of man.

    So in the original American concept of government, the citizens act by right, i.e. they have the right to do anything not prohibited by the law -- whereas the government may act only be permission, by “the consent of the governed”, the limits of said consent being defined in the Constitution.

    Arguing that gay marriage is not a “federal constitutional right” -- and therefore should not be recognized -- is an inversion of this concept. It promotes the notion that the citizens have only those rights authorized by the Constitution. Progressives and leftists are happy to exploit this inversion by pushing the notion that the government may do anything not specifically prohibited by the Constitution. Thus have conservatives helped the left transform the Constitution from a document that limits government’s powers to a document that limit’s the citizen’s rights.

    Conservatives claim to advocate “limited government” -- but their fight against social issues like gay marriage and abortion have led them to advocate “limited freedom” instead. And in the process they’ve helped destroy the Constitution as a limiter of government power.

  4. Mmm, tried to post this earlier, but blogger verification screwed it up.

    I will have to respectfully disagree that Kagan is at all saying how she would rule. That phrase “as interpreted by courts” is a pretty big loophole. Indeed, it demonstrates the servile liberal idea that the constitution says whatever the courts say it says, which how I have interpreted her all along.

    At the very least, she should be grilled heavily on that.

    Also on the gay issue, the fact she has dated some men at some point in her life doesn’t settle it. But her best friend saying she is not gay is strong evidence in support.

    Finally, to the commenter, Mike, you are actually the one missing the point. You say that the constitution is about federal power, and every power not granted is denied. And that is correct. But the laws against gay marriage are generally not federal laws, but state laws, so that doesn’t really apply. At best your argument proves the federal government cannot prevent gay marriage. But that is a long way from the Federal Government—through its courts—requiring it.

    Indeed, when a state doesn’t “allow” gay marriage, its not actually an action—it’s a decision to refain from action. Two men can live together and call themselves married and as far as I know, no state tries to prevent that. but what gay people are seeking is that the government act, to confer a certain status on you. This isn’t “government stay out of my life.” Instead this is, “please government, come into my life.”

    So the best argument for gay marriage is to say it is a discrimination against gay people not to. The problem being, of course, that it is more than a little laughable to say the founders of the 14th amendment intended anything of the sort.

  5. A.W. -- I fail to see what point I've missed.

    You're making the same sort of argument as Professor Jacobson -- namely, you are trying to find a legal pretext for denying the right of gays to marry without addressing the more fundamental question of whether or not they possess the right to do so.

    A marriage is a form of state-recognized and state-enforced contract. The issue is whether or not the right to form such contracts is limited to heterosexuals. Why should it be? If all human beings are created equal and possess equal rights before the law, how can there be a law granting rights to individuals of different sexes but denying the same right to individuals of the same sex?

    The answer is that there is absolutely no basis in logic for such a distinction -- it's purely a religious, i.e. faith-based, i.e. arbitrary notion. It is, in fact, an unjustifiable discrimination against gays.

    The fact that the founders of the 14th amendment couldn't or didn't forsee this is completely irrelevant. The Constitution -- as originally written -- didn't prohibit slavery either -- are you going to argue that this means that slavery is proper?

    When -- oh when? -- are conservatives going to realize that their obsession with "social issues" is killing their credibility, alienating a significant portion of the voters and serving only to empower the liberals?

  6. Professor Jacobson

    I think I have the smoking gun for my point of view that she was merely stating how she saw the precedent, rather than giving her opinion on the constitution. Observe this discussion of Heller, from the same Leahy questionnaire.

    > Q [after a lot of background] What is your personal opinion of the rights afforded by the Second Amendment?

    > Answer: The Supreme Court held in District of Columbia v. Heller… that the Second Amendment guarantees an individual right to keep and bear arms. The Court granted this right the same status as other individual rights guaranteed by the Constitution, such as those protected in the First Amendment. Like other nominees to the Solicitor General position, I have refrained from providing my personal opinions of constitutional law (except in areas where I previously have stated opinions), both because those opinions will play no part in my official decisions and because such statements of opinion might be used to undermine the interests of the United States in litigation. I can say, however, that I understand the Solicitor General’s obligations to include deep respect for Supreme Court precedents like Heller and for the principle of stare decisis generally. There is no question, after Heller, that the Second Amendment guarantees Americans “the individual right to possess and carry weapons in case of confrontation.”

    So her answer is she isn’t going to answer it. and she never does give her personal opinion. I think that puts the nail in that coffin. She wasn’t saying a right to gay marriage is not discoverable. She was just saying no court ever said it.

  7. Mike (cont)

    > The fact that the founders of the 14th amendment couldn't or didn't foresee this is completely irrelevant.

    Didn’t foresee what? That homosexuals exist? I can assure you they did, and they tended to follow Leviticus on the subject. In their day and time, Sodomy was a crime, and they expressed absolutely no interest in changing that law, or even disapproval of it. And yeah, that means Lawrence was wrongly decided too. Mind you, I don’t want the police throwing people in jail for gay sex, but there is nothing in the constitution demanding that policy preference.

    The passage of the 14th Amendment required the consent of a supermajority of the states. That consent had to be knowing. How could you possibly say that they consented to the legalization of gay marriage when they didn’t even disapprove of laws against sodomy? They clearly didn’t knowingly ban discrimination against gays at all.

    > The Constitution -- as originally written -- didn't prohibit slavery either -- are you going to argue that this means that slavery is proper?

    Slavery was legal in the United States UNTIL WE AMENDED THE CONSTITUTION. It wasn’t by activist judicial fiat that slavery was destroyed, but by amendment with the knowing consent of the people. In fact, up until that day, the activist decisions were always in favor of slavery.

    > When -- oh when? -- are conservatives going to realize that their obsession with "social issues" is killing their credibility, alienating a significant portion of the voters and serving only to empower the liberals?

    Obedience to the constitution is not merely a social issue. If you were talking about laws allowing gay people to marry, that would be one subject. But you are talking about distorting the constitution, and putting at risk our precious freedoms for your short term political goals.

  8. Mike

    > Why should it be? If all human beings are created equal and possess equal rights before the law, how can there be a law granting rights to individuals of different sexes but denying the same right to individuals of the same sex?

    Well, Thaddeus Stevens, father of the 14th amendment explained it well. He said his dream was that under the Equal Protection Clause that “no distinction would be tolerated in this purified republic, but what arose from merit and conduct.” This is a discrimination based on conduct.

    But let me put this back on you. Okay say we have a constitutional—rather than legislative—decision to allow for gay marriage. Then in comes Christopher and Steve, and they want to marry. So on the marriage certificate they are asked to list their parents, and they give the same name twice—they are brothers.

    Now I would assume you are opposed to that kind of coupling, right? But on what grounds would you allow the state to ban it? It can’t be the oft-repeated refrain of not wanting children with recessive genes, because they are never going to have children. So what distinction would you draw?

    Indeed, the claim that our laws against incest is about avoiding recessive gene combinations is in fact false. Most such laws also ban pairing between non-blood family—that is step-brothers and step-sisters, and adopted family members. That’s right, Greg Brady can’t marry Marsha Brady, even though they are not blood. The real reason why incest is banned is because it is a psychologically unhealthy relationship in the judgment of the people.

    And if that is the basis, then why can’t the people of a state also decide that a same sex relationship is also unhealthy? And if that reasoning is insufficient in reference to gay marriage, why isn’t it also insufficient in relation to incest?

    Now you might whine that a slippery slope argument is invalid. But in fact we are talking about law, here, and the work of courts. They can’t draw arbitrary lines. They must rule according to principles that do not change from case to case. But you know who CAN draw an arbitrary line? A legislature. So rather than shoving it down our throat unwillingly why don’t you talk to them?

    Oh, and don’t come back and say “by that logic, then the states can ban interracial marriage.” Except remember that guy I mentioned, Thaddeus Stevens? He had a long term romantic relationship with a black woman. And indeed, in Lincoln’s ugly comment that Stephen Douglas was only restrained from marrying a black person by law, he was in that case arguing against a law preventing interracial marriage. Put that together with a universally acknowledged purpose in the 14th A, of eliminating racial discrimination, and a few other things, and I would say Loving v. Virginia was correctly decided as a matter of original intent.

    But you can’t stretch original intent, by any argument, to include a protection against gay discrimination.

  9. btw, professor, i just realized... how creepy is it that she compares the second amendment to the first, given her paucity of respect for the first amendment?

  10. A.W. - You assume wrongly.

    Provided they do not violate the rights of others, there should be no laws prohibiting ANY SORT of free and voluntary associations between consenting adults -- period. If two adult brothers want to marry -- or if a father and his adult daughter want to marry -- that's no one's business but their own.

    Their lives belong to them -- not to you, not to the state and not to society. Even if the relationship is psychologically unhealthy, it's THEIR HEALTH and they have a right to make it “unhealthy“ if that is their choice. Even if they want to put a gun to their heads and blow their brains out -- it's their right to do so. It is THEIR head -- not YOURS.

    It is you who are the enemy of freedom. You’ve offered no argument except to appeal to behaviors you assumed I would condemn -- and then further assume that if I condemned them, I’d agree they should be outlawed.

    But it is not the proper purpose of the law to prohibit all conduct that we may find repulsive. It is the purpose of the law to protect our rights from those who would violate them by initiating physical force (or threat thereof) or fraud against our person’s or property. What two consenting adults wish to do -- provided they do not infringe my rights as described above -- is no one’s business but their own.

    Like virtually all conservatives today, you are unable and/or unwilling to properly articulate the principles of freedom -- and thus you are the worst possible "ally" freedom can have, for all your efforts serve to do is discredit freedom and empower the left in its crusade to eliminate it.