Nearly everyone seems to assume that, if she gets past the standing/jurisdiction issues to reach the merits, Justice Elena Kagan will vote to strike down the federal Defense of Marriage Act and California’s Proposition 8. Somehow clinging to a naïve faith in the power of reason, I continue to hold out a tiny (okay—a very, very tiny) hope that she, and all of the other justices, will instead recognize that DOMA and Prop 8 are constitutionally permissible—that it is legitimate for the federal government in its realm and for the state governments in their realms to maintain the perennial definition of marriage as a male-female union.
Indulging my more robust cynicism, I offer these observations about Kagan and same-sex marriage:
1. In February 2009, when the Senate Judiciary Committee was considering her nomination to be Solicitor General, Senator Cornyn submitted to Kagan this written question: “Do you believe that there is a federal constitutional right to same-sex marriage?”
Kagan’s full written response: “There is no federal constitutional right to same-sex marriage.”
As I suspected at the time and spelled out more fully later, Kagan was trying to bamboozle Cornyn and others who read her response into thinking that Kagan was expressing her view that the Constitution does not confer a right to same-sex marriage. But when pressed to clarify, Kagan stated (in a March 18, 2009 letter to Senator Specter, at pages 11-12 (second document here)):
I previously answered this question briefly, but (I had hoped) clearly, saying that “[t]here is no federal constitutional right to same-sex marriage.” 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.
When President Obama nominated Kagan to the Supreme Court just over a year later, various major newspapers and supporters of Kagan quoted only her initial statement that “There is no federal constitutional right to same-sex marriage”—thus giving the false appearance that Kagan was much more moderate than her critics charged. In short, Kagan’s bamboozling worked.
2. Also in connection with her SG confirmation hearing, Kagan was asked (in writing) whether she, as Solicitor General, would defend the constitutionality of DOMA. She responded that she “would apply the same standard to defending the Defense of Marriage Act … as to any other legislation: I would defend [it] if there is any reasonable basis to do so…. [T]his is a very low bar for a statute to climb over.” More generally, Kagan emphasized in her opening statement at that hearing the “critical responsibilities” that the Solicitor General owes to Congress, “most notably the vigorous defense of the statutes of this country against constitutional attack.” (Emphasis added.)
But as I have documented, far from vigorously defending DOMA, Kagan was instead complicit in the Obama administration’s sabotaging of its duty to defend DOMA (a sabotaging that preceded its formal abandonment of its duty). Specifically, the Obama administration gratuitously volunteered in briefs in cases challenging DOMA that “this Administration does not support DOMA as a matter of policy, believes that it is discriminatory, and supports its repeal,” and it 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 the very grounds for defending DOMA that had previously succeeded and that were most likely to succeed, 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.
Now Kagan may well be providing the dispositive fifth vote to deliver the Obama administration an undeserved victory in its attack on the law that it was dutybound to defend. So much for justice.