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:


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."


  1. Josh says

    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.”

  2. canddieinnc says

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

  3. jack says

    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.

  4. says

    @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.

  5. ravewulf says

    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.

  6. jp says

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

  7. Disgusted American says

    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….

  8. Brian in Texas says

    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.

  9. tikihead says

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

  10. nydcla says

    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?

  11. Adam says

    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.

  12. Caleb says

    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.

  13. micheal says

    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

  14. says

    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.

  15. salemlawyer says

    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.

  16. George says

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

  17. Clem says

    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?

  18. Caleb says

    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.

  19. Brian says

    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).

  20. Name: says

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

  21. Victor says

    “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

  22. Victor says

    I don’t know any Supreme Court justice short of Scalia who would argue that there is no fundamental right (or liberty interest which are indistinguishable in terms of constitutional interpretation) to marry. Logically Loving would simply not make sense otherwise.

  23. says

    If Kagan is a closeted lesbian, history indicates that she is less likely to stand up for gay and lesbian people than a straight nominee would be.

    It is very depressing that neither HRC nor Lambda Legal felt her statement regarding same sex marriage was worthy even of mention in their paeans to Kagan’s nomination.

  24. Ken says

    It appears that on the single most important gay rights issue, the right to marry, she has already made up her mind and she is against us. Obama has stabbed us in the back again! His presidency has been a disaster for gay rights. Same sex marriage IS a constitutional right, what we need are judges who able to see past their own bigotry and recognize it.

  25. says

    I work with lawyers and to me the way she answered is interesting. I caught the “now” context as I read it. I think she is an ally. She realizes she has to be careful in her answering.

  26. salemlawyer says

    Thanks Victor. I was looking for that quote.

    Let’s not read Kagan’s statement for anything other than its plain meaning. She is gonna screw us as a SCOTUS member.

    Every other commenter here who thinks otherwise is damn fool.

  27. Brian says

    @Victor – I agree that it is really tempting to read Loving as a case finding a fundamental right to marriage in the federal constitution. But if you really look at how the right is described and what Virginia did by criminalizing interracial marriage and how the Supreme Court characterized the violation, it’s clear that the Equal Protection Clause was the lynchpin, not any kind of substantive due process claim.

    Besides, Loving follows Griswold v. Connecticut by two years. In Griswold the Court when through a tortured process to identify a “privacy right” by looking at the “penumbra” of the Bill of Rights. It wasn’t until Roe v. Wade that a substantive privacy right was found in the 14th Amendment.

    Most of the state supreme courts that have found marriage equality is required by their state constitutions rely on an equal protection analysis. Ask Kagan if you think it constitutional to deny same-sex couples the ability to marry. See what answer you get.

  28. anon says

    Several war on terror cases went against the Bush admin 7-2 and 6-3, so even with her voting to uphold Bush laws the cases would still lose. I think there was one 5-4 case and several cases that went for Bush too.

  29. Dave in Northridge says

    I was all set to think that objecting to this nomination would be a classic “PLEASE don’t throw me in the briar patch” from the Uncle Remus stories, but now I’m beginning to wonder if really loud G/L objections won’t be used by this administration to support her as in “look how upset the fringe group who wants to throw out DADT is now.”

    Just a thought . . .

  30. Piper says

    I’m proud of all of us on this board who are taking the answer as an honest interpretation of the Constitution. Crazy rhetoric will get us no where.

  31. Dannie McNamara says

    There is no federal right to gay marriage, that’s true, but there is a federal right to be treated equally. That is why gay marriage will happen and needs to happen. USSC case law to be cited, front and center, will have to be:

    “The Constitution does not specifically mention freedom to marry, but it is settled that the “liberty” protected by the Due Process Clause of the Fourteenth Amendment embraces more than those freedoms expressly enumerated in the Bill of Rights. And the decisions of this Court have made clear that freedom of personal choice in matters of marriage and family life is one of the liberties so protected.” From Zablocki v. Redhail (United States Supreme Court, 1978)

  32. says

    @ Piper. Christ what a good like German you are. “Ze laws are there to protect only ze people ze State says so.” Too bad this isn’t Germany and it’s not 1932.

    Hold out your hand and I’ll spell it out for you:

    “Marriage EQUALITY” falls under the “due process” and “equal protection” guaranteed ALL citizens by the fifth and fourteenth amendments to the Constitution.

  33. Bryan says

    I completely agree with the anonymous person above who is disappointed that she is apparently closeted. What a poor example. If she doesn’t come out of the closet within the next month or two, I will be pissed.

  34. jack says

    nydcla WAY TO TESTIFY…

    at least i profoundly hope so. i have been walked down the primrose path so many times already, i can walk it in my sleep.

    it remains to be seen if she can walk kennedy back to the center by threading some semantic needle. olen and/or boies ought to be able to tick her boxes so she can agree and maintain her integrity. i hope.

  35. Mike says

    I’m not concerned at all. I think she will be a great justice. You never really know how someone will turn out until they get on the Court. Look at Justice Kennedy. Two of the landmark court rulings for gays were written by him… and he is a republican… From Romer v. Evans:

    “We must conclude that Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else. This Colorado cannot do. A State cannot so deem a class of persons a stranger to its laws. Amendment 2 violates the Equal Protection Clause, and the judgment of the Supreme Court of Colorado is affirmed. It is so ordered.”

  36. says

    I went the to same rigorous high school as Ms. Kagan (we were there for 1 year at the same time) and she was friends of friends of mine and I was friends with her brother (am I famous yet?).

    FWIW: from what I know of her and her intellectual world and her family, she really will stand for justice. As she taught at Harvard—laws affect real people, they don’t act in a vacuum. I can’t imagine she would ignore this fact when reviewing a DOMA challenge. Does DOMA affect straight folk? Not so much. Does it negatively affect gay folk? Heck yes. She gets that hands down.

    As for her own sexual orientation, I have no inside knowledge but wouldn’t really be surprised either way.

  37. jamal49 says

    Of course the HRC will endorse Kagan. God forbid that they might stop getting invites to all those fabulous fund-raisers and parties if they didn’t.