Bench Memos

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Re: Once Again, Elena Kagan on a Federal Constitutional Right to Same-Sex Marriage


So, why would Elena Kagan, during her confirmation process for Solicitor General, have striven to create the false impression that she believes that the Constitution does not confer a federal constitutional right to same-sex marriage?

Maybe, just maybe, because she knew that Barack Obama, while running for president, had claimed to oppose same-sex marriage and she calculated that her dissembling would advance her prospects for a Supreme Court nomination.  Maybe, just maybe, because she knew that other aspects of her record, including her extravagant condemnation of Don’t Ask, Don’t Tell as “a profound wrong—a moral injustice of the first order,” strongly signaled that she would, if given the chance, invent a constitutional right to same-sex marriage—and she wanted to muddy the picture. 

There’s every reason to believe that Kagan, if confirmed as a justice, would indulge her ideological bias and vote to invent—indeed, quite possibly provide the decisive fifth vote to invent—a constitutional right to same-sex marriage.  Kagan’s actions as solicitor general in cases involving gay rights have operated to undermine the very federal laws that she has been dutybound to defend.  As I have explained, Kagan failed to seek Supreme Court review of a rogue Ninth Circuit ruling that threatened Don’t Ask, Don’t Tell and that subjected the military to burdensome litigation.  And under her charge the Department of Justice filed a brief that gratuitously abandoned strong grounds for defending the Defense of Marriage Act.  You don’t need to take my word for it:  Law professor Dale Carpenter, a prominent supporter of same-sex marriage, celebrated the brief as “a gift to the gay-marriage movement” that “will no doubt make its way into judicial opinions.”


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