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Kagan ’09: ‘There is No Federal Constitutional Right to Same-Sex Marriage’

Let’s take a stroll down memory lane.  It’s 2009, and Elena Kagan is answering questions during her confirmation hearing for the position of Solicitor General within the Obama administration. According to William Jacobson at Legal Insurrection, who posted this piece on March 25, this is what she had to say about gay marriage:

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.

Since gay marriage has been thrusted into the political limelight again, Jacobson has resurrected his posts about Kagan from three years ago.  Now, when Jacobson posted about Kagan’s remarks, he was criticized by some conservatives, including Hot Air’s Allahpundit, over the semantics.  National Review’sMaggie Gallagher went a bit further, and called Jacobson’s post “shameful.”  Thankfully, Gallagher’s colleague at National Review, Ed Whelan, provided Jacobson with her letter to then-Sen. Arlen Specter (D-Pennsylvania) at the time to clarify the issue.

In a March 18, 2009 letter (embedded below, at pp. 11-12), which is not publicly available but which Whelan kindly provided to me, Kagan supplemented her written answers at the request of Arlen Specter. Here is the language in the letter seized upon by my critics to show that Kagan really didn’t mean what she said, and really just was opining as to the current state of the law:

Constitutional rights are a product of constitutional text as interpreted by courts and understood by the nation’s citizenry and its elected representatives. By this measure, which is the best measure I know for determining whether a constitutional right exists, there is no federal constitutional right to same-sex marriage.

These sentences do make it seem as if Kagan walked away from her prior written statement that “[t]here is no federal constitutional right to same-sex marriage.”

But these sentences are not the full supplemental response. Immediately preceding these sentences was the following language:

I previously answered this question briefly, but (I had hoped) clearly, saying that “[t]here is no federal constitutional right to same-sex marriage.” I meant for this statement to bear its natural meaning.

When the full supplemental statement by Kagan is read in context, there is nothing to suggest that Kagan was walking away from her written statement that there is no federal constitutional right to same-sex marriage.

Of additional interest is that when the Massachusetts Supreme Court found a state constitutional right to same-sex marriage, 18 Harvard Law School professors signed onto an amicus [i.e., friend of the court] brief supporting that ruling. But not Kagan.

Now, it’s Justice Kagan, and I wonder if she still thinks that “there is no federal constitutional right to same-sex marriage.”  Then again, she could just hop on the bandwagon like everyone else.   Sorry Politico, but this is the real ‘gotcha‘ story.

(H/T Legal Insurrection)

Elena Kagan March 18, 2009 Letter to Arlen Specter

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Comments (2)

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  1. L.E. Liesner says:

    Do you want to bet which way she will vote on this issue. Talk is cheap, it take money to buy whiskey. Saying one thing to get confirmed and believing what you said after confirmation is an altogether different thing in the political world. Remember, if their lips are moving it’s almost certain they are lying.

  2. vickey says:

    My opinion on this, is to give them the same rights but do it in a Civil Union… They could get the benefits as other couples … This doesnt seem to be good enough for them though… I look at it as them wanting to go against religion. If they want rights, why wouldnt this be a suitabe solution? No one’s rights or beliefs would be trampled on.
    It seems everytime someone gains rights, another right is taken away, in this case the idea of the religious that being gay is wrong…
    Some will argue that if this passes that no one’s rights will be taken but yes, they will for those who still feel that it is wrong. Just like the insuring woman to receive free birth control or whatever. Religion still needs to be recognised and forcing birth control issues down an employers throats is just wrong, especially when most woman can go to the Health and get free birth control…