Elena Kagan | Gay Marriage | News | Supreme Court

Kagan: 'There is No Federal Constitutional Right to Same-Sex Marriage'

UPDATED: HRC response below.

Kagan's answer on a questionnaire for her confirmation as Solicitor General before the Senate Judiciary Committee is now being parsed:

Elena_kagan

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.

Some predict this spells doom for the Olson-Boies federal challenge to Proposition 8.

Others have a different view:

"The question was phrased in the present tense. At the time Kagan answered the question, the Supreme Court had not yet said there was such a right, so she could say there is no right, in a narrow sense. Now, you might think that if a person is ever going to find a right in the Constitution, it must be that the right is already there. But that is a view of the Constitution that fits with a strong commitment to sticking to the original meaning of the text, and I don't think Kagan is on record or will ever be the sort of judge who says that constitutional rights are only what they were at the time the text was written. If the meaning of rights can grow or evolve or change over time, then one could say 'There is no federal constitutional right to same-sex marriage' one day and, later, say that there is."

The Human Rights Campaign praises Obama's nomination of Kagan. I'd love to hear their point of view on this particular nugget.

Some previous reporting on Kagan's support for the Solomon Amendment, which withholds federal funds from colleges and universities when they ban military recruiters because the military’s Don’t Ask, Don’t Tell policy conflicts with many universities’ antidiscrimination policies, here.

UPDATE: HRC has given us a statement regarding the Cornyn question: "While we understand this answer to be an assessment of the current state of Supreme Court precedent, it certainly merits further consideration during the confirmation process."

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Comments

  1. If she, or anyone, for that matter, were to be asked, "Is there a constitutional right to heterosexual marriage?" the answer would also have to be "No."

    Posted by: Josh | May 10, 2010 12:42:24 PM


  2. She is an Obama nominee. She won't rock the boat and she won't EVER be a liberal.

    Posted by: canddieinnc | May 10, 2010 12:44:50 PM


  3. i don't think we NEED a liberal, we need someone with a functioning brain who is NOT an ideologue.

    i would be curious as to her read on the loving v virginia case.

    Posted by: jack | May 10, 2010 12:53:42 PM


  4. @JACK: Amen!

    I've learned working with judicial candidates that lawyers only answer the exact questions they are asked. It's frustrating, but, it's the way it is.

    Posted by: Derek Washington | May 10, 2010 12:56:22 PM


  5. The phrasing of the question and answer are interesting. It does suggest that they only apply to things as they stand now and does not necessarily imply that she agrees with it. It is still very possible that a) she does not agree with it and/or b) she could be swayed by the facts and arguments presented by the case against Prop 8.

    I’m not giving up hope, but she is clearly playing it safe at least until she is confirmed. Don’t forget she has to get past the Republicans before taking up the post.

    Posted by: ravewulf | May 10, 2010 12:56:51 PM


  6. I agree. There is nothing in the Constitution about the right to marry, gay or straight.

    Posted by: jp | May 10, 2010 12:57:00 PM


  7. well I am not gonna have a "knee jerk" reaction as yet...especially - since in the Constitution there was NEVER a RIGHT for WOMEN - NONE, and well..we all know how that's wrked out....same there was never a stipulation for Equal Rights for Blacks either..and we know that wrked out...so...let see where this goes....

    Posted by: Disgusted American | May 10, 2010 1:00:34 PM


  8. Marriage is a state issue. But hopefully when the Olson/Boies case reaches the high court they will rule DOMA as unconstitutional since even if you ARE in a state that allows same-sex marriage, you are denied equal protection under the law since you are being denied over some 1000 federal rights.

    If she had answered that question any other way she would not have been confirmed as Solicitor General and thus would have never been nominated for Supreme Court.

    Posted by: Brian in Texas | May 10, 2010 1:03:51 PM


  9. There's no Federal Constitutional right to have a running chainsaw shoved up Kagan's capacious ass, but it's still a soothing image.

    Posted by: tikihead | May 10, 2010 1:08:04 PM


  10. There is no mention of marriage at all in the Constitution. And as noted in these comments, there are numerous other items mentioned or missing from the Constitution that have been rectified. However, the Courts declared marriage to be a "basic civil right" in Loving v Virginia. And the 14th Amendment prohibits discrimination of basic civil rights particularly among protected classes of people who have previously experienced discrimination. In this instance, Kagan is being coy to avoid having to declare her position on this subject, knowing that a pro-gay marriage position will likely prohibit her from being approved. Based on her other positions, she appears to be progressive, enlightened and brilliant. Certainly that has to be seen positively by our side, right?

    Posted by: nydcla | May 10, 2010 1:17:03 PM


  11. Stay classy, tikihead!

    This is not only classic lawyerspeak, it's incredibly smart. No intelligent supporter of gay rights would ever say - on a questionnaire! - that they aimed to expand marriage rights federally to gays and lesbians. Not if they wanted to get anywhere near confirmation, that is.

    Is that her aim? Who's to say - but none of the nominees are ever very forthcoming. For what it's worth, she's whip smart and has made good decisions for equality in the past. That's about all we can know.

    Posted by: Adam | May 10, 2010 1:18:14 PM


  12. Curious if anyone here has ever actually taken a con law class? Apparently not. It is entirely different to say that a right to marriage is not explicit in constitutional text and to say there is no federal constitutional right to marriage. There absolutely IS a federal constitutional right to marriage, as was expressed in Loving v. Virginia and numerous other decisions of the Supreme Court. There is a difference between being an originalist and a textualist. Kagan is very much an originalist, but I have my doubts she is a textualist or would agree that there is no federal constitutional right to marriage. As Andy points out, there Court has yet to recognize any constitutional right to same sex marriage and so through semantics she can say there is no right to it and then later defend it as meaning at the time there was no such right recognized.

    A textualist would say there is no right to marriage of any kind (because it isn't written there) and that there never can be one recognized unless through an amendment. I don't think Kagan goes that far.

    But to say there is no federal constitutional right to marriage is simply untrue. The Court has on numerous occasions recognized such a right and therefore it absolutely does exist. If it didn't, Virginia would still be able to prevent interracial marriage. You can't overturn miscegenation laws without recognizing a fundamental liberty interest in regards to marriage.

    Posted by: Caleb | May 10, 2010 1:24:06 PM


  13. relax, people.
    she simply answered the question as it was asked.

    i think she would have answered "there is no constitutional right to heterosexual marriage" if they had asked her, for the simple reason that marriage isn't mentioned at any point in the constitution

    i don't think this is a reason to panic

    Posted by: micheal | May 10, 2010 1:25:42 PM


  14. Whether she is gay is irrelevant. George Rekers is gay, Mary Cheney is gay AND a woman...Phyllis Schlafly, Elaine Donnelly, Shirley Phelps are women...would you want any of them on the Court for life?

    Yes, a couple of nobodies on the right have made noises about opposing her because she might be gay, but the IMPORTANT point is that the actual powerbrokers on the Far Right like Lindsey Graham and the National Review and the Federalist Society LOVE her because she thinks George Bush'es so-called Patriot Act which rapes the Constitution is just peachy keen. Did you know it empowers the federal government to send you to prison JUST for writing a newspaper article about anyone the government has declared "a terrorist"?

    "Salon" contributor and civil liberties attorney & expert Glenn GreenwaId, who IS gay, says it's "a pernicious myth" that Kagan is a liberal. "Replacing Stevens with Kagan would shift the Court substantially to the Right on a litany of key issues (at least as much as the shift accomplished by George Bush's selection of the right-wing ideologue Sam Alito to replace the more moderate Sandra Day O'Connor).”

    Now Obama Inc. is rewarding her for saying there's no constitutional right to same gender marriage [just like their DOJ stooge said last week against the case brought against DOMA by married couples in Massachusetts] and defending both Bush'es Patriot Act AND DADT in the same homophobic terms McShame is...and displaying, yet again, their refusal to FIGHT FOR the principles they CLAIM to believe in.

    "the last thing [Beltway Democrats] want is to defend what progressives have always claimed is their worldview, either because they fear the debate or because they don't really believe those things, so the path that enables them to avoid confrontation of ideas is always the most attractive, even if it risks moving the Court to the Right.

    Why would the American public possibly embrace a set of beliefs when even its leading advocates are unwilling to publicly defend them and instead seek to avoid that debate at every turn?"

    CLASS: can you say "repeal of DADT"?

    "It's anything but surprising that President Obama has chosen Elena Kagan to replace John Paul Stevens on the Supreme Court. Nothing is a better fit for this White House than a blank slate, institution-loyal, seemingly principle-free careerist who spent the last 15 months as the Obama administration's lawyer vigorously defending every one of his assertions of extremely broad executive authority. The Obama administration is filled to the brim with exactly such individuals -- as is reflected by ITS ACTIONS AND ITS POLICIES -- and this is just one more to add to the pile." - Greenwald

    "[R]ight now Obama has the biggest Democratic majority in the Senate he's ever going to have. So why not use it to ensure a solidly progressive nominee like Diane Wood instead of an ideological cipher like Kagan? .... When Obama compromises on something like healthcare reform, that's one thing. Politics sometimes forces tough choices on a president. But why compromise on presidential nominees? Why Ben Bernanke? Why Elena Kagan? HE DOESN'T HAVE TO DO THIS. unfortunately, the most likely answer is: HE DOES IT BECAUSE HE WANTS TO."- Mother Jones magazine.

    Posted by: Michael @ LeonardMatlovich.com | May 10, 2010 1:28:36 PM


  15. Let's not twist oursleves into a pretzel trying to figure out how someone who makes such an awful, anti-gay statement is actually our friend. Have we learned nothing in the past 18 months about our "friends?"

    Kagan's statement is very clear. She is NOT going to vote in favor of either overturning DOMA in the Gill v. OPM case, or in overturning Prop 8 in the Perry v. Schwarzenegger case. There is nothing equivocal in her answer.

    Trying to read this as some clever lawyerly way of actually SUPPORTING same sex marriage is so delusional. THIS WOMAN IS A NIGHTMARE for LGBT Americans.

    What do you need a frying pan over the head?

    "There is no federal constitutional right to same sex marriage."

    The Masscahusetts case recognized a state constitutional right to same sex marriage in the Massachusetts Constituion, a case that Kagan claims she never read!

    Folks, stop being dumb. Obama has nominated the fifth (or sixth) vote against same sex marriage.

    Wake up.

    Posted by: salemlawyer | May 10, 2010 1:29:09 PM


  16. I agree with her. But DOMA is unconstitutional because it conflicts with the Full Faith & Credit Clause. She chose her words strategically.

    Posted by: George | May 10, 2010 1:29:54 PM


  17. HRC really expects us to believe that they say after Kargan after all the empty talk from them about how Obama intends to repeal DADT this year?

    Posted by: Clem | May 10, 2010 1:30:59 PM


  18. And I would agree Kagan has made *some* good decisions on equality. But by all accounts, she is enough of an originalist to likely never recognize a federal right to same sex marriage protected in the US Constitution. I have serious doubts that she will ever be willing to support such a right if presented to the court, whereas Stevens would have been quite likely to.

    The nomination of Kagan in no way protects whatever balance existed on the Court. As usual, Democrats are morons and would prefer to choose a moderate than someone like Stevens. Whereas Republicans have absolutely no problem shoving the Court full of far right leaning idealogues.

    We are losing one of the most liberal justices on the Court and replacing him with someone who is anything but. I recognize Obama has giving his approval so weak-minded liberals will bow down before him but this is a terrible choice to replace Stevens.

    Posted by: Caleb | May 10, 2010 1:31:11 PM


  19. You meant to say "her OPPOSITION to the Solomon Amendment."

    Posted by: KG | May 10, 2010 1:33:24 PM



  20. She's a stupid cow c unt.

    Posted by: DavidEhrensqueen | May 10, 2010 1:33:43 PM


  21. Wait...she IS a lesbian, right?

    Posted by: DannyP | May 10, 2010 1:36:09 PM


  22. If it walks like a dyke and talks like a dyke...

    Posted by: Victor | May 10, 2010 1:40:30 PM


  23. The Supreme Court has never held that marriage is a fundamental right. Loving v. Virginia turns on racial classifications and is an Equal Protection clause case. Zablocki v. Redhail says that marriage is part of the "right to privacy" identified in the contraception and abortion cases. The right to privacy is also not a fundamental right -- it was called a "liberty interest" in Planned Parenthood v. Casey by the controlling joint opinion (O'Connor, Kennedy and Souter).

    Posted by: Brian | May 10, 2010 1:58:01 PM


  24. Congratulations to Obama's closeted lesbian nominee!!! What a great role model for all young lgbt youth. Three jeers!!!

    Posted by: Name: | May 10, 2010 2:09:11 PM


  25. "Marriage is one of the 'basic civil rights of man,' fundamental to our very existence and survival.... To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State."

    -Loving v. Virginia

    Posted by: Victor | May 10, 2010 2:11:19 PM


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