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:


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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  1. 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.

    Posted by: Victor | May 10, 2010 2:17:11 PM

  2. 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.

    Posted by: Todd Shui | May 10, 2010 2:22:29 PM

  3. 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.

    Posted by: Ken | May 10, 2010 2:23:34 PM

  4. 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.

    Posted by: Willie | May 10, 2010 2:30:08 PM

  5. @Caleb: This is why I like reading the comments so much.....most are mature and considered....and I for one thank you.

    Posted by: JackFknTwist | May 10, 2010 2:45:26 PM

  6. I guess we can spend a lifetime waiting for Americans to "like us enough" - OR - we can decide that we do not have to "wait" for America to live up to its Constitution.


    Posted by: John Bisceglia | May 10, 2010 2:59:04 PM

  7. here's the Glenn Greenwald piece mentioned up-thread by Michael @ Leonard - "The Case Against Kagen".


    Posted by: bryank | May 10, 2010 3:09:56 PM

  8. 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.

    Posted by: salemlawyer | May 10, 2010 3:19:58 PM

  9. @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.

    Posted by: Brian | May 10, 2010 3:24:27 PM

  10. 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.

    Posted by: anon | May 10, 2010 3:27:45 PM

  11. 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 . . .

    Posted by: Dave in Northridge | May 10, 2010 3:39:17 PM

  12. 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.

    Posted by: Piper | May 10, 2010 3:46:34 PM

  13. 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)

    Posted by: Dannie McNamara | May 10, 2010 4:21:34 PM

  14. @ 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.

    Posted by: Michael @ LeonardMatlovich.com | May 10, 2010 4:30:22 PM

  15. 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.

    Posted by: Bryan | May 10, 2010 4:37:28 PM

  16. 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.

    Posted by: jack | May 10, 2010 8:37:31 PM

  17. 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."

    Posted by: Mike | May 10, 2010 10:52:06 PM

  18. 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.

    Posted by: David R. | May 11, 2010 1:25:23 AM

  19. 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.

    Posted by: jamal49 | May 11, 2010 2:14:45 PM

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