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May 12, 2010

Column #1,498

“A Vote for Kagan Is A Vote For Gay Marriage”

By Mike McManus

                 Maggie Gallagher, President of the Institute for Marriage and Public Policy, flatly asserts: “A vote for Elena Kagan is a vote for finding a constitutional right to gay marriage that will overturn marriage laws in every state.”

                Wait, during Kagan’s confirmation hearings to be Solicitor General, didn’t she say that she believes “there is no constitutional right to same-sex marriage?”  Yes.

                Pressed for more detail, she wrote to Sen. Specter, “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.”

                As Ed Whelan of Ethics & Public Policy Center puts it, “In other words, Kagan was saying only that the courts haven’t yet invented a federal constitutional right to same-sex marriage.”

                Of course, the Supreme Court can do that.  There are two cases that will shortly be before the Court.  Perry v. Schwarzenegger is aimed at overturning Proposition 8, the vote by millions of Californian against gay marriage.  The co-counsels on this case are well-known: David Boies and Theodore Olson, who were once on opposing sides, representing Al Gore and George W. Bush in the presidential race of 2000.  Olson was also once U.S. Solicitor General, America’s top lawyer before the Supreme Court, the position now held by Kagan.

                If the Supreme Court overturns the Prop 8 vote that limits marriage to a man and a woman, it will also be overturning state constitutional amendments in 31 states, most of which were the result of similar Prop 8-type votes.

                A second case likely to end up at the Supreme Court is Gill et al v. Office of Personnel Management, which seeks to overturn the Defense Against Marriage Act (DOMA), a federal law that bars benefits like Social Security to same-sex spouses and allows any state not to recognize a gay wedding of another state.  DOMA was passed by overwhelming margins by Congress and signed by President Clinton.

                What is the evidence that Kagan was dissembling when she said she did not see a “federal constitutional right to same-sex marriage?”

                Gallagher points to the Human Rights Campaign, the nation’s largest lesbian, gay, bisexual and transgender (LGBT) civil rights organization, which issued a press release that “applauded President Obama for choosing Elena Kagan to become our nation’s next U.S. Supreme Court Justice,” said Joe Solmonese, the Campaign’s president.

                “We are confident that Elena Kagan has a demonstrated understanding and commitment to protecting the liberty and equality of all Americans, including LGBT Americans.”

                To put it more simply, America’s largest LGBT group says she’ll vote for gay marriage.

                Solomese notes that “issues critical to the LGBT community may reach the Supreme Court in the next few years, including issues related to marriage equality, the “Don’t Ask, Don’t Tell” law, the Defense of Marriage Act, and the new federal hate crimes law.”

                Columnists such as Michael Gerson of the Washington Post, formerly top speechwriter of George W. Bush, have cited Kagan’s “extraordinary ability, while holding high-profile jobs in the legal profession, to say nothing on the major issues of the day.”

                Tom Goldstein, a Kagan supporter, acknowledges, “I don’t know anyone who has had a conversation with her in which she expressed a personal conviction on a question of constitutional law in the past decade.” 

                This is a woman who was Dean of Harvard Law School for a decade where she earned a reputation for hiring conservatives and getting them to work with liberals. However, while there, after 9/11, when our troops were fighting for their lives, she kicked military recruiters off campus.  Why? She didn’t like the “Don’t Ask, Don’t Tell” law signed by Clinton. The case went to the Supreme Court where she lost, and then allowed recruiters back.

                There have been rumors that Kagan, 50, is a lesbian. However, long-time friends deny that, saying that she dated men but never found the right one to marry. 

                What matters is not her personal life but evidence that she has elevated her pro-gay ideology above the law of Congress, even though Harvard was enjoying more than $300 million of federal grants.

                If she is confirmed, know that she will vote for gay marriage in the California case, which is likely to force it across the country even though 31 states prohibit it.

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