A vote for Elena Kagan is a vote for “marriage equality,” which features in two key cases that will shortly be before the Supreme Court: Perry v. Schwarzenegger, which arises out of California’s Prop 8 but will apply to all 50 states, since it seeks to establish a federal constitutional right to gay marriage; and Gill et al. v. Office of Personnel Management, which seeks “only” to overturn the federal laws defining marriage as one man and one woman.
There has been an effort to obfuscate Kagan’s position on gay marriage using statements she made when nominated to be solicitor general, but these efforts are all either sad or laughable. Take, for instance, this Cornell law professor: He pretends to believe that, when Kagan stated that she has never taken a public position on whether the Constitution ought to be read as protecting gay marriage, she somehow meant that she believes the question should be left up to the political process. This is shameful to the author; he must know better.
Part of this is a deliberate attempt to mislead the American people. Reasonable disagreement is one thing; outright deception is another.
Kagan waded into the DOMA case, amending a brief that offered “responsible procreation” as a reason for DOMA to instead explicitly reject procreation and child wellbeing as a reason for defining marriage as one man and one woman – undermining the law she claims to be defending. We’ve seen this tactic in state litigation before: Attorneys general pretend to defend the marriage law but sabotage the case by explicitly rejecting procreation as a reason for marriage. (See Jerry Brown in California.)
If you doubt my reading of Kagan’s record, see the Human Rights Campaign’s press release, which specifically cites her support for “marriage equality” in cases before the Supreme Court as a reason for voting for her.
HRC and Maggie Gallagher agree: A vote for Elena Kagan is a vote for finding a constitutional right to gay marriage that will overturn marriage laws in every state.