Bench Memos

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

I see that various folks, including Media Matters, continue to misrepresent Elena Kagan’s written statement (see 28th page here) during her confirmation process for Solicitor General that “There is no federal constitutional right to same-sex marriage.”  As I have explained, Kagan’s statement seemed designed to fool the reader 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 (emphasis added)):

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.

Let’s set aside for now that Kagan’s first answer seemed designed to do exactly what it has done—to mislead the public—and that her second answer tried to dig her out of the hole only by positing an entirely implausible account of what the “natural meaning” of her first response was.  (A truly Clinton-esque performance.)  For present purposes, I would simply like to reiterate that Kagan’s answers, in their full context, demonstrate that she has not offered the view that the Constitution does not confer a federal constitutional right to same-sex marriage. 

Stretching charity to the breaking point, I will indulge the assumption that Media Matters (which has been monitoring my blog posts for some time) somehow missed my previous clarification of this point, that it is not simply lying outright about Kagan’s statement, and that it will promptly and prominently correct the record and acknowledge its error.

* Kagan’s letter to Specter is the second document here.  (The letter from Specter to which Kagan is responding precedes it.)


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