Elena Kagan and the freedom to marry

May 12, 2010

As posted by Ann Althouse on Althouse:

"In the course of her nomination for Solicitor General, Kagan filled out questionnaires on a variety of issues. While she bobbed and weaved on many issues, with standard invocations of the need to follow precedent and enforce presumptively valid statutes, on the issue of marriage equality Kagan was unequivocal.

"In response to a question from Sen. John Cornyn (at page 28 of her Senate Judiciary Questionnaire), Kagan stated flat out that there was no constitutional right for same sex couples to marry (emphasis mine):

1. As Solicitor General, you would be charged with defending the Defense of Marriage Act. That law, as you may know, was enacted by overwhelming majorities of both houses of Congress (85-14 in the Senate and 342-67 in the House) in 1996 and signed into law by President Clinton.

a. 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 the freedom to marry?

Answer: There is no federal constitutional right to the freedom to marry.

b. Have you ever expressed your opinion whether the federal Constitution should be read to confer a right to marriage equality? If so, please provide details.

Answer: I do not recall ever expressing an opinion on this question.

"This doesn't mean that Kagan opposes the freedom to marry. But she clearly believes it is a matter for the political process, not a constitutional right.

..."Now, you might think that if a person is ever going to find a right in the Constitution, it must be that the right is already there. But that is a view of the Constitution that fits with a strong commitment to sticking to the original meaning of the text, and I don't think Kagan is on record or will ever be the sort of judge who says that constitutional rights are only what they were at the time the text was written. If the meaning of rights can grow or evolve or change over time, then one could say "There is no federal constitutional right to the freedom to marry" one day and, later, say that there is."

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