Kagan’s Non-Denial Denial on Gay Marriage


In 2009, while seeking confirmation as solicitor general, Elena Kagan gave a seemingly forthright written response when asked in writing by Sen. John Cornyn: “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?”

Kagan’s entire response: “There is no federal constitutional right to same-sex marriage.”

Not much wiggle room there, you might think. Indeed, some Kagan supporters have cited this response in denouncing suggestions by critics that she might support a new right to same-sex marriage. So can we chalk Kagan up as a vote against same-sex marriage when she faces the issue as a justice? Well, no.

Cornyn clearly intended to ask whether Kagan’s personal view was that the U.S. Constitution should be interpreted to guarantee a right to same-sex marriage. But Kagan, when pressed later for clarification of her response, suggested somewhat opaquely that she had only been summarizing case law and public opinion. “I previously answered this question briefly, but (I had hoped) clearly, saying that ‘[t]here is no federal constitutional right to same-sex marriage,’ ” Kagan wrote in a March 18, 2009, letter to then-GOP Sen. Arlen Specter of Pennsylvania, now a Democrat. “I meant for this statement to bear its natural meaning. 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.”

A Liberal Nominee — And A Proposal

National Journal

The president’s nominee had "a brilliant legal mind" and a charming manner, the critic wrote in an op-ed. But his record was "resolutely conservative." This made the Supreme Court nomination "a seismic event that threatens to deepen the nation’s red-blue divide." It should be rejected, the critic implied.

The nominee was John Roberts, now the chief justice. The critic was the comparably brilliant and charming Goodwin Liu, a University of California (Berkeley) law professor. He is now the most resolutely liberal of President Obama’s judicial nominees.

Indeed, the 39-year-old Liu’s sweeping vision of court-ordered social justice, though within the mainstream of legal academic opinion, puts him markedly to the ideological left of all 41 Senate Republicans, at least half of the Democrats, and 80 percent or more of voters, I’d guess.

Putting aside his ideology and his less than two years of legal experience outside the academy, Liu is an admirable candidate for the federal Appeals Court seat in California that he will fill if confirmed. The Rhodes scholar and former law clerk to Justice Ruth Bader Ginsburg has an inspiring son-of-Taiwanese-immigrants life story. Plus, people like him.

So how should Senate Republicans and moderate Democrats respond to Liu’s nomination, now set for a Judiciary Committee hearing on April 16? Defer to the president? Vote no? Stall? Filibuster?

More on that below. First, a look at Liu’s writings and speeches, which conservative legal analyst Ed Whelan has collected, linked, and exhaustively analyzed in multiple posts on National Review Online’s Bench Memos blog.

Gay Marriage by Judicial Decree

National Journal

I wholeheartedly support gay marriage. And I am happy for the many gays who rejoiced at the California Supreme Court’s 4-3 decision on May 15 ordering the state to stop calling committed gay couples "domestic partners" and start calling them "married."

So why do I see the decision as an unfortunate exercise in judicial imperialism? Let me count the ways. Then I’ll touch on how it could be a harbinger of the constitutional innovating that we might see if the next president engineers a strong liberal majority–a likelier prospect than a strong conservative majority–on the U.S. Supreme Court.

First, the California court’s 121-page opinion was dishonest. This was most evident in its ritual denial of the fact that it was usurping legislative power: "Our task … is not to decide whether we believe, as a matter of policy, that the officially recognized relationship of a same-sex couple should be designated a marriage rather than a domestic partnership … but instead only to determine whether the difference in the official names of the relationships violates the California Constitution [emphasis in original]."

This was a deeply disingenuous dodge, if not a bald-faced lie, to conceal from gullible voters the fact that the decision was a raw exercise in judicial policy-making with no connection to the words or intent of the state constitution. It is inconceivable that anyone but a supporter of gay marriage "as a matter of policy" could have found in vague constitutional phrases such as "equal protection" a right to judicial invalidation of the marriage laws of every state and nation in the history of civilization.

The Supreme Court: Place Your Bets

The Atlantic

A year after conservative Justice Samuel Alito succeeded liberal-leaning Justice Sandra Day O’Connor, a disagreement between two of the nation’s best legal journalists about how much President Bush has transformed the Supreme Court prompts this challenge to Court-watchers:

What will the legal landscape look like in 10 years? Make your predictions and place your bets.

In a widely acclaimed book full of revelations about behind-the-scenes battles over the Court, Jan Crawford Greenburg, now of ABC News, says that after decades of disappointment, conservatives have finally won the day. The appointments of Alito and Chief Justice John Roberts will produce a "profound and lasting alteration," Greenburg writes in Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court. They and their allies will now engineer "one of the most fateful shifts in the country’s judicial landscape in a generation … with repercussions as yet unimagined," she predicts.

"I’m not holding my breath," retorts Benjamin Wittes in The New Republic Online. Wittes, an author and a guest scholar at the Brookings Institution who until recently wrote the nation’s smartest legal editorials for The Washington Post, highly recommends Greenburg’s book (as do I) for its "genuinely spectacular" reporting. But he dissents from her view that Bush has set the stage for an era of conservative hegemony.

To advance this intriguing discussion, I offer specific predictions below and invite others to offer theirs.

Opening Argument – Gay Marriage and the Estate Tax

National Journal

President Bush and congressional Republicans have spent the past week rallying their base by flogging proposals on the issues headlined above that seem extreme and indefensible to many of us independents.

On gay marriage, the "Marriage Protection Amendment" that Bush is pushing would bar not only activist judges but also the people and their elected representatives from ever allowing gay couples to marry. So states where public opinion may someday come to favor same-sex marriage would find their hands tied by the Constitution. This from the party that purports to champion states’ prerogatives in matters of local concern.

On the estate tax, Republicans (and some conservative Democrats) want Congress to abolish all taxes on inherited wealth, to the point of encouraging people who never work to live high on vast, untaxed bequests. This from the party that purports to champion work incentives.

The whole gay-marriage/estate-tax show is mainly symbolic, of course. The Marriage Protection Amendment has no chance of adoption. And the campaign for complete abolition of the estate tax has little chance. But if there is poetic justice in this world, the Republicans’ revealing choice of symbols will backfire by spurring independent swing voters to sweep them from power.

Gay marriage. Many religious conservatives see homosexual acts as sins. And many other people fear that gay marriage would somehow harm an institution that has been a cornerstone of civilization for thousands of years.

I disagree. In particular, the notion that gay marriage would tempt straight and monogamous people to become gay or promiscuous seems far-fetched. So does the idea that gay marriage — which would move not a single child from a traditional household to a gay one — would be bad for children.

Opening Argument – Bush Has The Wrong Remedy to Court-Imposed Gay Marriage

National Journal

"Because of the full faith and credit clause of the Constitution (which makes every state accept ‘the public Acts, Records, and judicial Proceedings of every other State’), gay marriage can be imposed on the entire country by a bare majority of the state supreme court of but one state…. The 1996 Defense of Marriage Act? Nonsense. It pretends to allow the states to reject marriage licenses issued in other states. But there is not a chance in hell that the Supreme Court will uphold it."

Santorum on Sex: Where the Slippery Slope Leads

National Journal

"If the Supreme Court says that you have the right to consensual sex within your home, then you have the right to bigamy, you have the right to polygamy, you have the right to incest, you have the right to adultery. You have the right to anything…. The definition of marriage has not ever to my knowledge included homosexuality. That’s not to pick on homosexuality. It’s not, you know, man on child, man on dog, or whatever the case may be."

Legal Affairs – A Vote For Gay Marriage – But Not by Judicial Fiat

National Journal

Vermont and its legislature are mired in furious debate over the state Supreme Court’s ruling two months ago that the legislature must "extend to same-sex couples the common benefits and protections that flow from marriage under Vermont law," either by allowing same-sex marriages or by creating comprehensive "domestic partnership" rights.

Twisting and Turning on Gay Rights

The Supreme Court’s big gay rights decision on May 20 is at once immensely inspiring and intensely troubling.

The inspiring thing about Romer v. Evans is the Court’s overdue embrace of simple justice for gay people, through fee majority’s assertion that states "cannot make them unequal to everyone else" or "deem a class of persons a stranger to its laws."

If the courts build on this foundation with wisdom and restraint, and if the nation receives it with respect, Romer may foster social tolerance as well as legal equality. It does not necessarily portend a line of decisions that will run roughshod over the free-association fights of people who are offended by (or simply uncomfortable with) homosexuality, nor will it push Heather Has Two Mommies into public school curricula.

The troubling thing about the 6-3 Romer decision is that the majestic generalities of Justice Anthony Kennedy’s majority opinion are surrounded by such crude, superficial, and evasive legal reasoning- along with slurs tarring the voters of Colorado as bigots-as to lend credence to the dissenters’ complaint that this is "an act, not of judicial judgment, but of political will."

The risk is that the glaring flaws in me majority opinion-compounded by the distortions that pervade Justice Antonin Scalia’s elegantly vitriolic dissent- might help spur a backlash akin to the one that followed Roe v. Wade, an equally weak attempt at judicial reasoning. This could damage the Court’s moral authority and even, in the long run, set back the cause of gay rights.

We won’t know for a decade or so, until the effects have rippled through our law and culture, whether the good in this decision will eclipse the bad.