Bench Memos

Elena Kagan on Same-Sex Marriage and Other Gay-Rights Issues

A Wall Street Journal article today on controversy over Supreme Court candidate Elena Kagan’s stances on gay-rights issues quotes Kagan as stating (in a written answer during her confirmation process for Solicitor General), “There is no federal constitutional right to same-sex marriage.” Unfortunately, the passage fails to make clear, as Kagan clarified in further follow-up, that she was merely describing the current state of the law, not offering her own view how the Constitution should best be read.

The WSJ article addresses Kagan’s extremist rhetoric and actions as Harvard law school dean against the Don’t Ask, Don’t Tell law and the Solomon Amendment (including the utterly implausible legal analysis that she embraced in an amicus brief). It’s worth highlighting that Kagan has also taken actions in her SG capacity that operate to undermine Don’t Ask, Don’t Tell and the Defense of Marriage Act.