Kagan’s Non-Denial Denial on Gay Marriage

In 2009, while seeking confirmation as solicitor general, Elena Kagan gave a seemingly forthright written response when asked in writing by Sen. John Cornyn: “Given your rhetoric about the Don’t Ask, Don’t Tell policy—you called it ‘a profound wrong—a moral injustice of the first order’—let me ask this basic question: Do you believe that there is a federal constitutional right to same-sex marriage?”

Kagan’s entire response: “There is no federal constitutional right to same-sex marriage.”

Not much wiggle room there, you might think. Indeed, some Kagan supporters have cited this response in denouncing suggestions by critics that she might support a new right to same-sex marriage. So can we chalk Kagan up as a vote against same-sex marriage when she faces the issue as a justice? Well, no.

Cornyn clearly intended to ask whether Kagan’s personal view was that the U.S. Constitution should be interpreted to guarantee a right to same-sex marriage. But Kagan, when pressed later for clarification of her response, suggested somewhat opaquely that she had only been summarizing case law and public opinion. “I previously answered this question briefly, but (I had hoped) clearly, saying that ‘[t]here is no federal constitutional right to same-sex marriage,’ ” Kagan wrote in a March 18, 2009, letter to then-GOP Sen. Arlen Specter of Pennsylvania, now a Democrat. “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.”

Conservative blogger Ed Whelan, in National Review Online’s Bench Memos, accuses Kagan of “trying to bamboozle Senator Cornyn” and “mislead the public” by implying in her initial response—the better to “advance her candidacy for a Supreme Court nomination”—that she personally opposed recognizing a right to same-sex marriage.

Kagan’s subsequent response to Specter, adds Whelan, head of the Ethics and Public Policy Center, was an effort to dig herself out of a hole by giving “an entirely implausible account of what the ‘natural meaning’ of her first response was. (A truly Clinton-esque performance.)”

Whelan also claims that “there’s every reason to believe that Kagan, if confirmed as a justice, would indulge her ideological bias and vote to invent—indeed, quite possibly provide the decisive fifth vote to invent—a constitutional right to same-sex marriage.”

I’d bet Whelan a hot-fudge sundae that Kagan will not to do that—but only if he gives me 3–1 odds.

Part of the basis for Whelan’s prediction is his related claim that Kagan’s actions on gay issues as solicitor general “have operated to undermine the very federal laws that she has been duty-bound to defend,” in particular the federal Defense of Marriage Act and the law excluding openly gay people from the military.

Has Kagan really undermined those laws? That’s a subject for another post. For now I can only say—as a Kagan admirer who wants to see her confirmed—that “Clinton-esque” seems a fair characterization of her responses to Cornyn and Specter alike.

Taylor is a contributing editor for NEWSWEEK and National Journal.