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    FWIW – Kagan 2009: “There is no federal constitutional right to same-sex marriage”

    FWIW – Kagan 2009: “There is no federal constitutional right to same-sex marriage”

    That’s the statement Elena Kagan made back in 2009 when she was going through confirmation proceedings to become Solicitor General (emphasis added):

    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 samesex 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.

    It’s an answer she stood by at the time in a follow up statement.

    I was told when I posted about this during Kagan’s confirmation hearings to the Supreme Court that I was hopelessly naïve (or worse) to think she meant anything more than a statement of the law at that time, and that she would find a way not to be held to that statement when the issue came to the Supreme Court.

    I don’t think that’s a fair reading of her statements to the Senate Judiciary Committee in 2009, but I also think it’s probably a fair reading of what her position will be in the cases to be argued this week.

    She will say that things have changed.  Or evolved.

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