Monday, May 10, 2010

Kagan and Same-Sex Marriage: Unclear, Like Most Issues

William Jacobson, the author of the blog Legal Insurrection, makes a interesting assertion in a recent post.  Jacobson argues that Elena Kagan "clearly believes [same-sex marriage] is a matter for the political process, not a constitutional right." 

Jacobson bases this assertion on a questionnaire that Kagan completed in connection with her confirmation as Solicitor General. One of the questions asked Kagan whether she believed that there was a federal constitutional right to same-sex marriage. Kagan unequivocally stated that "[t]here is no federal constitutional right to same-sex marriage."

Jacobson is probably reading Kagan's answer too broadly.  Kagan could simply mean that no federal right exists because the Supreme Court has not yet decided this issue.  This, however, would not preclude her from arguing that the Constitution confers such a right, when and if the issue came before her as a justice. 

Ann Althouse agrees and has written more on the subject: Althouse: Elena Kagan said "There is no federal constitutional right to same-sex marriage," but does that mean that, as a Supreme Court Justice, she won't find that right?

1 comment:

Decidere said...

Despite my disliking the Kagan nomination, I guess I'm not convinced (yet?) that there is a Constitutional right to gay marriage. I can think of all sorts of rational reasons why topless sunbathing should be legal, and making it illegal is discriminatory, but that's often what we do in society. It took 3 amendments to make blacks somewhat equal and 1 to make women somewhat equal, and we see how tenuous the "right" of abortion is. In East of Eden, Steinbeck debates the translation for God's commandment to Cain "timshel", between "thou do" and "thou shalt", and finally at the end settles on "thou mayest". In this regard, I think the Constitution allows us to be rational regarding gay marriage, but doesn't require us to be. Thus if we want it codified, we need to codify it. Passage at the state level is part of that process, but not the end game.

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