Bench Memos

Elena Kagan on a Federal Constitutional Right to Same-Sex Marriage

Today’s Washington Post appears to repeat the Wall Street Journal’s recent error of asserting that Elena Kagan has expressed her legal opinion that the Constitution should not be construed to confer a right to same-sex marriage:

It was clear during Kagan’s confirmation hearings last year that lawmakers recognized she might one day be sitting before the committee as a Supreme Court nominee. She ventured only safe answers that were built on respect for the court’s precedents rather than her own reading of the law or the Constitution.

She did say that she did not believe there was a constitutional right to same-sex marriage and that she was not “morally opposed” to capital punishment.

This error is understandable because Kagan’s initial evasive written response seemed designed to mislead the reader into thinking that was what she was saying.  Pressed to clarify, Kagan stated (in a March 18, 2009 letter to Senator Specter, at pages 11-12):

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.

In other words, Kagan was saying only that the courts haven’t yet invented a federal constitutional right to same-sex marriage.