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Kagan’s Deceptive Testimony on a Federal Constitutional Right to Same-Sex Marriage



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I documented yesterday (again) that Elena Kagan’s testimony during her confirmation process for Solicitor General that “There is no federal constitutional right to same-sex marriage” turns out not to mean that she believes that the Constitution does not confer a right to same-sex marriage.  Here I would like to highlight just how deceptive Kagan’s testimony was.

Senator Cornyn posed this question in writing to Kagan:

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 (see 28th page here):  “There is no federal constitutional right to same-sex marriage.”

As Kagan, when pressed, later elaborated, she did not mean by her response to state her view on whether the Constitution, properly interpreted, confers a right to same-sex marriage.  Rather, she was merely providing a summary of the state of case law on the question (or, as she confusingly put it, applying the “measure” of rights as “a product of constitutional text as interpreted by courts and understood by the nation’s citizenry and its elected representatives”).  But, as Kagan surely knew, Cornyn wasn’t interested in having her summarize the state of case law.

Further evidence that Kagan was trying to bamboozle Senator Cornyn is provided by the much clearer answers that Kagan gave to comparable questions by Senator Specter on whether certain constitutional rights exist. 

Specifically, Specter asked Kagan, “Do you believe that the Constitution, properly interpreted, confers a right to a minimum level of welfare?”  In response, Kagan stated (emphasis added):

The Constitution has never been held to confer a right to a minimum level of welfare. For a very short period of time around 1970, some courts and commentators suggested that welfare counted as a fundamental interest for purposes of equal protection review. This period of constitutional thought, however, came to a close very quickly, as the courts determined that welfare policy was not best made by the judicial branch. This determination comported with this nation’s traditional understanding that the Constitution generally imposes limitations on government rather than establishes affirmative rights and thus has what might be thought of as a libertarian slant. I fully accept this traditional understanding, and if I am confirmed as Solicitor General, I would expect to make arguments consistent with it.  [Answer to Specter Q 5.b, on 5th page here.]

Similarly, Specter asked Kagan, “Do you believe that the Constitution, properly interpreted, confers a right to engage in obscene speech?”  Kagan’s response (emphasis added):

The Constitution has never been held to confer a right to engage in obscene speech. To the contrary, the Court long has considered obscenity a category of “low-value” speech that is unprotected by the First Amendment. Miller v. California, 43 U.S. 15 (1973), sets out the basic test for what material counts as obscene. I fully accept this longstanding body of law, and if I am confirmed as Solicitor General, I would expect to make arguments consistent with it.  [Answer to Specter Q 5.c, on 5th page here.]

The italicized portions of Kagan’s responses to these questions from Specter show both that she knew how to state clearly when she was merely describing case law (“The Constitution has never been held …”) and that she was willing to express her own (supposed) legal views on some constitutional questions (“I fully accept …”).  The most plausible explanation for her evasive response to Cornyn’s question on same-sex marriage is that she determined that deceiving him and the public would advance her candidacy for a Supreme Court nomination.



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