Justice Kagan in 2009: ‘There Is No Federal Constitutional Right to Same-Sex Marriage’

June 30, 2015 in News by Slad

“Of course, there was no right to constitutional right to same-sex marriage right up until last week when Kagan joined four other justices on the court in creating one.”

Source: The Weekly Standard

3:14 PM, JUN 29, 2015 • BY MARK HEMINGWAY 

Over at the blog Legal Insurrection, law professor William Jacobson reminds us of this answer Elena Kagan gave to Senator John Cornyn in her confirmation hearings to be Solicitor General in 2009:

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 same-sex marriage?

Answer: There is no federal constitutional right to same-sex marriage.

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

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

Emphasis added. Of course, there was no right to constitutional right to same-sex marriage right up until last week when Kagan joined four other justices on the court in creating one. Appropriately enough, your opinion of whether or not Kagan lied to Congress in her confirmation hearings depends on what the meaning of ‘is’ is.