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Monday, May 10, 2010

Supreme Irony - Kagan Nomination Ends Gay Marriage Hopes

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.

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

Related Posts:
Kagan Rumors Expose Left-Wing Hypocrisy and Homophobia
Why Do They Hate Elena Kagan?
So Why Am I Already Defending Elena Kagan?

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  1. Thanks for carrying out the necessary research to keep us informed about Elena Kagan. Believe me, no left leaning blogger will do it.... so I am relying on you.

    I'm certainly far more Liberal than most who read your blog. Nevertheless, I support the nomination of Elena Kagan. Predominantly based upon what I have read here.

    Personally, I believe in the constitutional rights of gay individuals. I think the whole institution of marriage belongs in the churches. (Let them decide who receives a sacrament, and let the state issue civil documents.)

    But... I'll admit I'm no legal scholar, so I'll defer to Ms. Kagan on the issue.

    I wish her a smooth and undramatic confirmation hearing.

  2. Mr. Jacobson: I appreciate your due diligence but fundamentally disagree that anything Kagan said or previously committed herself to on this issue means a thing once she's installed on the court. This is simply the way with liberals.

  3. You are assuming Elena Kagan was HONEST about this position--a serious mistake. Unfortunately your thesis is incorrect.

    Recall that Kagan, when heading Harvard, barred the ROTC from campus, and went to court over it, because of DADT. That proves she is committed to "gay rights".

    Also, considering that Kagan is herself a Lesbian, who has cohabited with another woman for over 15 years, it seems inconceivable that she would oppose "gay marriage".

  4. Gay people already have as many constitutional rights as straight people, I believe. Same as single verses married. I don't think there is anything in the Constitution about the right to marry and it has typically been a state issue.

    I could not find the reference, but believe there was a time marriage was the domain of the church to recognize. I wouldn't mind that track either.

    The main issues that I have realized as a married person is my spouse's ability to either enrich or ruin my life in the eyes of the law. Marriage also makes your spouse your next of kin concerning your medical care.

    I don't know if the law is still the same now, but years ago a wife could own real estate in her own name, but a husband couldn't. From what I gather, the last one has more to do (for me, anyway) with private property rights. When a man "owned" his wife and kids, like other things he owns, he takes care of them. A woman that owns property would not be left impovershed if the man left the marriage. I don't know how that concept would be interpreted in a gay union (not the personal ownership, but the property). I assume it would end a woman's right to a sole deed to real estate.

  5. I am very pleased about the nomination of Kagan. Give me a moment, let me explain why.

    First, she couldn't possibly be worse than Stevens. in fact we might hope a little rightward movement on a few issues.

    second, she stinks as an advocate. For instance, in Citizen's united she took the radical position that corporations had no free speech rights at all. a smarter advocate would have taken a more moderate position. She lost kennedy the moment she said that this mean even a book could be banned. she's terrible. And thus she will be a positive liability to any cause she gets behind in the conference room.

    She will be a vote, but she will not move the court. by comparison, thomas moves the court. he says something in one case and 5-10 years later, it becomes the rule. not all the time, but he is demonstrably capable of moving his colleagues to his position.

    btw, are we certain about the lesbian thing?

    that being said, first, I am sure that Stevens was going to vote for gay marraige eventually, so if she does, nothing will have changed. And certainly she has alot of room to weasel out of what she said before congress--such as saying she merely meant there was no court case saying that there was a right. remember to liberals there is no constitution, just what the courts say about it.

    but that all being said, even if she is biased in favor of it, that might backfire. it is regularly noted that in judicial bias cases, that both sides have a right to complain. For instance, imagine if we find out that the judge is best friends with the plaintiff in a given case. so the defendant has cause to complain, to say, "you're just going to favor your friend." But so does the plaintiff, because he can say, "there is a danger that you might be unfairly hard on me, to prove you are not biased in my favor." Same thing, here. if Kagan is gay, then she might feel that if she is the 5th vote for gay marriage everyone will assume she was biased and it would deligitimize the ruling. Indeed, if she was gay, she might actually go the other way and refuse to strike down gay marriage.

    So that is my $0.02, fwiw.

  6. Thank You for posting this.

    We are following Kagan's nomination In Depth at Common Cents...


  7. The left could be going after Kagan, as a means to make her appear more palatable to the republicans. Frankly, I wouldn't put anything past the Obama administration.

  8. Bill, Cornyn's question seems like half a question. Isn't the issue really one of equal protection under the law? Sure, there's no "federal constitutional right to same-sex marriage." But there's no federal constitutional right to opposite-sex marriage, either. So she can answer the way she did, but still believe that if we let opposite-sex couples marry, we also have to let same-sex couples marry.

    Just seems like Cornyn gave her a chance to look more conservative on something and she took it.

  9. Your post is written as if her confirmation is assured. Just because she was confirmed as Solicitor General doesn't mean she will be confirmed for SCOTUS (see Bork).

    As you have noted, her paper trail is sparce, so she will undergo alot of scrutiny on that issue alone. She will also have to defend her decision to bar military recruitment at Harvard Law. I don't care how repugnant she finds Don't Ask Don't Tell as policy, not allowing the institution whose men and women are prepared to die in service to their country to recruit on her campus is hard for many Americans to swallow.

    Even if she is ultimately confirmed, I want the Republicans to grow a backbone and give her the same treatment Kennedy and Biden gave Bork, Thomas, and others.

  10. She'll never be confirmed. The right will see to that and I'm right there with them.

  11. Rush is right now referencing this post! Congrats!

  12. This post was just Rush-lanched! Congratulations!

  13. El Rushbo mentioned this post on his show in the third hour today. Kudos to being on his radar!

  14. What do you think about this?

    Kagan Whitewash


  15. Rush is reading and discussing this post right now.

  16. "Same thing, here. if Kagan is gay, then she might feel that if she is the 5th vote for gay marriage everyone will assume she was biased and it would deligitimize the ruling. Indeed, if she was gay, she might actually go the other way and refuse to strike down gay marriage."

    No. Only republicans do that.

  17. The one problem I see with relying on her answer is that the series of questions began by placing them in the context of her duty, if confirmed as SG, to defend the DOMA. It would have been extraordinarily tough for her to simultaneously fudge her answer while proclaiming her ability and willingness to defend DOMA (even the remote possibility of a constitutional right to gay marriage would compromise the defense of that statute). I suspect strongly that she will introduce some nuanced elaboration into her answer at her SCOTUS confirmation hearing. For example, she might say that there exists no plain explicit such right (which is obviously true) but that would not necessarily end the matter (in effect, she'd be saying, you should have asked that question differently). Or she might say she can't answer it this time since that matter will come before her to decide in the post to which she's been nominated, whereas last time she was up for SG.

    While hse may get accused of playing with words or even dishonesty, that alone likely will not prompt a GOP filibuister (remember, she's replacing an almost sure vote for gay marriage, leaving the score even). Ultimately, of course, once on the Court, whatever she said cannot and will not constrain her.

  18. There was no fundamental right to interracial, inmate, felon, abuse or molestation marriage either in the constitution. However, SCOTUS has determined there is a fundamental right to marriage, independent of the circumstance that brought the issue before the court.

  19. Mr. Jacobson, I think you made an unwarranted assumption regarding Kagan's responses to the questionnaire. Under Washington v Glucksberg (521 US 702, 721, 117 S Ct 2258, 2268 [1997]), under substantive due process analysis, the asserted fundamental right must be carefully described. The questionnaire at issue defined the right as "same-sex marriage." That, however, is not, at least according to proponents of same-sex marriage, the "careful description" of the fundamental right at issue. Instead, the fundamental right is to marriage whether heterosexual or homosexual. In other words, Kagan could be in favor of extending the fundamental right of marriage to homosexuals, yet not find that there is a fundamental right to same-sex marriage.
    You are correct that we shall wait and see, but I think you make an unwarranted assumption at this point.

  20. Can we cut to the chase here? Past the legal community's desire to have the final say on everything?

    There is no constitutional "right" to any abnormal behavior. Be it pedophilia, serial killing, or urinating on the third rail of the Washington Metro.

    GLBT's are abnormal in the most egregious fundamental core value of any species: reproduction. (Interesting how the theory of evolution doesn't apply to GLBT's or professional women that don't reproduce - they all might as well join the "intelligent design" crowd.)

    And if gay marriage is so important to GLBT's ... move to MA and live your everlasting live of bliss. If it is really all that important to you. People move for health, education, jobs, their pets, relatives, etc. ... so moving seems a small sacrifice to Make Your Lives Whole.

  21. Is there a Constitutional right to marriage at all? It's not in the Constitution.

  22. Personally I think SCOTUS will uphold prop 8 with Kagan or without her. My casual poll of folks here in CA results in 95% certainty that the Supreme Court won't rule in favor of equal marriage rights. The catholic influence is too strong, the rightwing friendliness is too tight.
    The only way to gain equal rights in marriage is to take the effort to the states(lets go CA!) and give the Supreme Court the support to recognize the basis of the matter, that marriage is a legal term (separate from and in addition to a religious one) and that equal protection under the law should prevail.

  23. Mr. Jacobson, interesting post. Thanks for sharing. I found it through a Facebook link from a lesbian friend... and unlike most of your commenters, I see it as just one more reason to oppose her.

    Becky, your understanding of Constitutional law and history is skewed in some frankly inexplicable ways.

    A.W., I do indeed fear we'll see more "rightward motion." Just as we've been seeing from the Court for thirty years now. It's already the most reactionary Court since the 1930s. What more do you want?

    M., I assure you, the opposition to Kagan from me and others on "the left" (i.e., supporters of civil liberties) isn't party of any nefarious double-fake-out strategy. It's completely sincere. We could've had a genuinely qualified progressive like Pam Karlan or Diane Wood, and instead we get a blank slate. This was a defining moment for Obama, and he blew it.

    Maggot et al., she'll be confirmed. There's no serious doubt about it. Indeed, "confirmability" seems to have been the primary motive for choosing her. I actually agree with you, though, in hoping she gets a serious grilling from the Judiciary Committee. Maybe then at least we'll have some idea where she stands.

    Bill, you're just a bigot.

    And to and and all who question the validity of a Constitutionally derived right to same-sex marriage... please, go read Loving v. Virginia and ask yourself, deep down and honestly, how on earth the reasoning could *not* be transferable.

  24. No, no, no! She's lying. What are you guys thinking?!! NOM reports on her true identity and judicial leanings. SHE'S LESBIAN AND SHE WILL VOTE FOR SSM! Are you kidding? The story of the Fable of the Snake:

    A woman comes upon a snake in some kind of trouble (frozen, injured or being attacked). She rescues the snake, takes it home, and nurses it back to health. It becomes a trusted friend and pet. Then one day, she decides to go to town and picks up the snake to take it with her … and it bites her. As she dies, she asks the snake why. “Lady,” the snake says, “you knew I was a snake when you picked me up.”

    Here is the latest email from the National Organization for Marriage (http://nomblog.com/879/):

    A vote for Elana Kagan is a vote to impose gay marriage on all 50 states.
    Send your senators a message today!
    Don't be fooled, Pres. Obama today has nominated a radical justice who will vote to overturn Prop 8 in California, the federal Defense of Marriage Act and the laws protecting marriage in all 50 states.

    NOM has reviewed her record, and today we told the press. "A vote for Elana Kagan will be a vote for imposing gay marriage on all 50 states."

    How do we know? For one thing, as Solicitor General, Elena Kagan has sabotaged the legal case for upholding the federal Defense of Marriage Act.
    Kagan's brief before the federal courts on DOMA attacked the main legal rationale for marriage, that it is related to responsible procreation.
    Her apparent "defense" of DOMA was designed to -- and in fact will -- undermine the law in federal courts, paving the way for a federal constitutional right to same-sex marriage. Some people have pointed to a statement she made during the confirmation process for Solicitor General as evidence she opposes a constitutional right to same-sex marriage. The context of that statement makes clear she was not describing her own views, but the state of the existing law. Claims that somehow Kagan is "moderate" on gay marriage are part of a PR campaign intended to mislead the public about her core Constitutional values.

    If you need any other assurance that Kagan is a vote for stripping Americans of our right to vote for marriage, listen to the Joe Solmonese of the Human Rights Campaign, the richest and most influential gay rights organization in the country:
    “We applaud President Obama for choosing Elena Kagan to become our nation’s next U.S. Supreme Court Justice . . . We are confident that Elena Kagan has a demonstrated understanding and commitment to protecting the liberty and equality of all Americans, including LGBT Americans," as Solmonese went on to specifically cite the need for justices committed to LGBT issues on federal cases related to "marriage equality."

    A vote for Kagan is a vote to strip all Americans
    of our right to vote for marriage as one man and one woman.
    Tell your Senators to vote NO today!

    The only way to win this fight is if we all join together to make our voices heard in Washington. After you've told your Senators you don't want a radical same-sex marriage supporter on the Supreme Court, please spread the word to your friends and family.
    What can you do? Forward this email . . . post on Facebook . . . retweet on Twitter . . . do whatever you can do to get the word out. You know your friends and social networks. Please do whatever it takes to get your friends to take action today!

  25. It seems to me that we're focusing on just one issue as if somehow none of the others matter. Moreover, what makes issues and what makes them relevant to the appointment.

    My first concern would be adherence to the Doctrine of Original Intent. The job requires this by it's very existence. In that light a very good question, since she'll claim to not be in good standing in appearances to answer questions on pending or future questions, "Do you agree with the majority on the recent finding regarding the Right of the people to keep and bear arms?"
    "What is your view of the meaning of the Second Amendment?" In my book this is always a good place to start.

    Another focus area would be, "Please tell us in your own words what constitutes a right and contrast that with a privilege". Since there seems to be so many today who cannot articulate this I would think the answer she gives would be rather telling.