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."