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Bench Memos

NRO’s home for judicial news and analysis.

From Bad to Worse to What, I Wonder . . .



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Those of us on that lean to the right are used to disappointment when it comes to the judiciary, but we’ve always taken pessimistic comfort in the belief that it couldn’t get much worse. Well, we were wrong.

Judge Walker’s 138-page opinion overturning California’s definition of marriage presents such a target-rich environment that the hardest part about discussing its flaws is knowing where to begin. But one clear implication of the decision is that Elena Kagan, if confirmed to the Supreme Court tomorrow or Friday, could be the deciding vote on whether the Constitution requires the state and federal governments to recognize same-sex marriage — overriding federal and state laws and even state constitutions.

At her confirmation hearings for solicitor general, Kagan stated that “there is no federal constitutional right to same-sex marriage.” So far so good. But (as Ed Whelan has noted) when pressed about her answer by Senator Specter, Kagan wrote in response:

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.

As she clarified in her Supreme Court hearings, Kagan’s view of the Fourteenth Amendment is that it does not provide any “clear signposts” for determining fundamental rights and that its meaning can “change over time.” This jurisprudence of flexibility leaves our constitutional rights at the mercy of judges reading the signs of the times or, worse still, imposing their own personal vision of where America should be headed.

Indeed, Judge Walker used Kagan’s precise line of reasoning to hold that, since sex roles and family structures have changed dramatically over time, homosexuals now have a fundamental right to same-sex marriage under the Fourteenth Amendment, seven million “Yes on Prop 8” voters notwithstanding. Once on the court for life, what would stop Justice Kagan from following Judge Walker’s lead on same-sex marriage? Certainly not her principles.



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