As a sequel to my post on Elena Kagan’s actions as Solicitor General to undermine Don’t Ask, Don’t Tell, and as further evidence that she would indulge her strong ideological bias on gay rights as a justice, let’s look at her role in undermining another federal law that she was dutybound to defend: the Defense of Marriage Act.
As I documented a year ago, the Department of Justice during Kagan’s tenure as SG filed a reply brief in a California case challenging the Defense of Marriage Act. In that brief, DOJ gratuitously volunteered that “this Administration does not support DOMA as a matter of policy, believes that it is discriminatory, and supports its repeal” and made explicit that it was defending DOMA only because DOJ “has long followed the practice of defending federal statutes as long as reasonable arguments can be made in support of their constitutionality.” Further, DOJ gratuitously abandoned strong grounds for defending DOMA, as it asserted that it “does not believe that DOMA is rationally related to any legitimate government interests in procreation and child-rearing.”
As the Volokh Conspiracy’s Dale Carpenter, an ardent proponent of same-sex marriage, put it (emphasis added):
This new position is a gift to the gay-marriage movement, since it was not necessary to support the government’s position. It will be cited by litigants in state and federal litigation, and will no doubt make its way into judicial opinions. Indeed, some state court decisions have relied very heavily on procreation and child-rearing rationales to reject SSM [same-sex marriage] claims. The DOJ is helping knock out a leg from under the opposition to gay marriage.
Here’s what Kagan had to say about the matter at her hearing:
Senator Grassley, this was not a case in which I was the decisionmaker. It was a case in district court, and the Solicitor General’s decisionmaking responsibilities take over at the appellate court level. It was a case in which members of my office and I reviewed some briefs and participated in some discussions.
I agree that Kagan did not have formal decisionmaking responsibility for the district-court reply brief. But on a matter like this, involving various cases throughout the nation at different points in the appeals process, the Civil Division is not going to take a position without coordinating it with the Solicitor General. Kagan concedes that she was personally involved. Yes, there’s the theoretical possibility that Kagan vigorously opposed the position taken in the reply brief and that the Civil Division appealed over her head to the Attorney General or Deputy Attorney General (where Kagan’s legendary consensus-building skills somehow failed her). But that theoretical possibility is utterly farfetched. The only sensible conclusion is that Kagan violated her commitment to defend DOMA vigorously.