Elena Kagan: “There is no constitutional right to same-sex marriage”

Tuesday, May 11, 2010

While the left and the right remain bitterly divided on President Obama’s nomination of U.S. Solicitor General Elena Kagan to fill the seat on the Supreme Court currently occupied by retiring Justice John Paul Stevens, one issue of critical importance to the gay community is the constitutional right to same-sex marriage, and the stealth-like Kagan has made her views on the issue unequivocally clear: There is no constitutional right to same-sex marriage.

Elena Kagan — long rumored to be a lesbian says there is no constitutional right to marriage equality. This isn’t to say Kagan personally opposes marriage equality but, she clearly believes it is a matter of political process versus a constitutional right.

This startling information was gleaned from her nomination for U.S. Solicitor General when Kagan filled out questionnaires on a variety of issues. While she bobbed and weaved on many issues, offering safe responses which support the legal requirement to follow precedent and enforce presumptively valid statutes, on the issue of same-sex marriage Kagan was unequivocal.

In a response to a question from Texas Sen. John Cornyn, Ms. Kagan stated flat out that there was no constitutional right for same sex couples to marry:

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 same-sex marriage?

Elena Kagan answer: There is no Federal constitutional right to same-sex marriage.

Kagan’s position on marriage equality may endear her to social conservatives but such her position could spell doom for the chance of success for the Federal lawsuit filed by David Boies and Ted Olson to have California’s Proposition 8 voided and declared unconstitutional.

Still support her nomination to the High Court?

SOURCE: Legal Insurrection

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21 Responses to Elena Kagan: “There is no constitutional right to same-sex marriage”

  1. Big Hank says:

    You mean to tell me, Kagan wasn’t aware of the legal challenge by David Boies and Ted Olson to have California’s Proposition 8 declared unconstitutional when she gave Sen. Cornyn this answer?

    She had to know how it could be interrupted at some future date.

  2. feminazi says:

    I was away for an extended weekend with the kids and I’m trying to get up to speed on all I missed. As much as I would like to see more women on the US Supreme Court, the more I learn about Elena Kagan, the more I get the impression she’s a social conservative. Not all together uncommon among Jewish intellectuals. If she isn’t on-board with gay marriage, then I can’t support her nomination.

  3. Mauigirl says:

    This is very disturbing. However, not surprising, given that President Obama himself does not support same-sex marriage, just civil unions.

    Here’s the problem with the whole Supreme Court – when the GOP is in power they appoint justices who are clearly well to the right of center. When the Dems are in power they pick people who are centrist. There can never be an even balance unless both sides pick centrists – which isn’t going to happen as long as the GOP gets to pick any justices.

    Why is it the Dems are always afraid to pick anyone who really represents their base, while the GOP loves to appease its base?

  4. Brigadoon says:

    I see where the Human Rights Campaign is on-board with Kagan and ready to use their platform to push her all the way. Have I said how much I truly hate Joe Solmonese and what he’s done to the organization?

  5. Eric Equality Kuntz says:

    Kagan told Cornyn precisely what he wanted to hear and her response helped pave the way to becoming Solicitor General.

    The problem with the Supreme Court is you rarely know how a justice will turn out. Conservatives were convinced John Roberts would carry water for them and he has turned out to be more moderate. John Paul Stevens started out more conservative than he is now which people forget.

    We have no way of knowing how Elena Kagan will rule on a potential constitutional challenge to gay marriage. She’s opposed to “Don’t Ask, Don’t Tell” which is good. But, marriage equality is such a fundamental moral issue for gay Americans and I am concerned about her written answer to Sen. Cornyn.

  6. Matteo says:

    Christopher — Thanks for staying on top of the Kagan nomination. I had no she held the view there is no constitutional right to gay marriage. Clearly, Kagan is a social conservative.

    I found this over at Huffington Post and wanted to pass it along.

    Elena Kagan Urged President Bill Clinton to Support a Ban on Late-Term Abortions

    http://www.huffingtonpost.com/2010/05/10/elena-kagan-urged-bill-cl_n_570935.html

  7. Harry says:

    I dislike Kagan more each day. If she goes through and the SCOTUS rejects the Ted Olsen/David Boies case, I will hold her and Obama responsible.

  8. Rachel says:

    I saw this on Huffington Post this morning. I didn’t know Elena Kagan took this view on the extremely rare medical procedure called late-term abortion and I didn’t know she rejected marriage equality based on her read of the US Constitution. Some are now saying Kagan is a strict constitutionalist but, if you believe as I do that the governing document of our country is a living, breathing document that can change over time, then Elena Kagan is the wrong choice for to replace John Paul Stevens. I am very disturbed by all of this.

  9. R.J. says:

    Kagan gets a thumbs down from me. And that was before I heard about this.

  10. Jim says:

    I’d tried to keep an open mind about this candidate, but now, this concrete, troubling evidence definitely makes me doubt Kagan’s suitability for the job. Next candidate please!

  11. Kate Novotny says:

    In a mere 24 hours, I’ve gone from elation to horror regarding Elena Kagan. So, what do we now know?

    1. embraces the so-called Unitary Executive theory espoused by Dick Cheney
    2. believes the U.S. should be able to detain terror suspects indefinitely in keeping with the US Patriot Act
    3. says there is no Constitution right for marriage equality
    4. opposes late-term abortion
    5. has ties to Goldman Sachs

    President Obama can and must do better. He needs to withdraw her name from consideration.

  12. Tiny Dancer says:

    Perhaps Elena Kagan isn’t gay?

    I mean, unless you’re one of the douchebag Log Cabin Republicans, what gay person in 2010 doesn’t support the precepts of marriage equality?

    Well, only Mary Cheney comes to mind.

  13. Estacada says:

    I am very concerned Kagan will move the SCOTUS further to the right — the opposite of where I think the High Cort should go.

    But what do I know? I’m beginning to regret ever voting for President Obama.

  14. Aunt Peg says:

    Miss Kagan is dreadful.

    I would prefer a liberal woman and not a conservative Democrat willing to throw the gay community under the bus just for political advancement.

  15. Greg Equality Lengkong says:

    “Why do the conservatives always get the conservatives, but we don’t get to get the liberals?” Sen. Tom Harkin, Democrat of Iowa. (D-IA)

  16. Randy Arroyo says:

    I can’t wait for the Judiciary hearings. I hope one of the members presses Kagan on marriage equality and the Defense of Marriage Act. She needs to defend her written reply to Cornyn, or, she needs to step aside. Being courageous about DADT isn’t sufficient for me to support her.

  17. bradfrmphnx says:

    Okay…I’m starting to have second thoughts. Upon my first bit of research, I saw some positive things. To me, very positive. You can’t argue that she is a brilliant mind. However, there are some things coming out that give me pause. It would seem there are better choices. Wouldn’t we want the BEST choice? It doesn’t appear that Kagan is the best choice. This will be up to the Dems in the Senate, if they like her, she’s in. I’m thinking they won’t.

  18. Padraigs Ghost says:

    If it looks like a carpetmuncher and it walks, talks, and dresses like a carpetmuncher, it most likely is a carpetmuncher… What we got here is a Radical Leftist Jewish Lesbian Elitist. Now who really cares what she does in her bedroom with other gals, or what ethnic or religous background she comes from; as long as she interpets the law and is not another hack judicial activist shilling for Fabian Socialism and Distributive Justice. However, time will show she is thick as thieves with the radical Jedeo-Bolshevism elite. She hired such notible fellow travellers and believers in the “Nanny State” when she was at Harvard Law as Prof. Cass Sunstien, etc. According to Wikipedia, at Princeton, she wrote a senior thesis under historian Sean Wilentz studying the socialist movement in New York City in the early 20th century. She worked at the bastion of Bulsheviks, the U. Chicago Law School with Sunstien and Obama. She is also connected to the New York Bankers who are robbing the American Republic via the FED. From 2005 through 2008, Kagan was a member of the Research Advisory Council of the Goldman Sachs Global Markets Institute. Do I need to go on here?!?!

  19. Adirondacky says:

    I’m sure Elena Kagan will be confirmed whether we like it or not. I wonder if she will support President Obama’s intent to limit Miranda? My guess is, Kagan will do what she’s told to do.

  20. Jolly Roger says:

    The equal protection clause was cited to hand an election to the guy who lost it, but it wouldn’t cover consenting adults in a long-term relationship?

    Does the Constitution mean anything anymore, to anyone?

  21. Jimmy says:

    I think she answered based on the job she was up for. The things a Supreme Court Justice has to consider are different. They take into consideration what federal courts are saying and how the law is developing. Solicitor is a different role than Justice.

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