You’d never know from reading Monday’s headlines, but Obama’s Supreme Court nominee does not believe in the constitutional right to marriage equality.
Yes, in spite of conservatives jeering she must be a lesbian and therefore unqualified to serve, and in spite of fanning speculation as to her sexuality even by liberal commentators, one entry in a questionnaire she took before confirmation as solicitor general reveals her position in black and white.
Sen. John Cornyn (R-TX)’s specific question, found on page 28 of this Senate Judiciary Committee document, was:
Given your rhetoric about the DonÃ¢â‚¬â„¢t Ask, DonÃ¢â‚¬â„¢t Tell policyÃ¢â‚¬â€you called it Ã¢â‚¬Å“a profound wrongÃ¢â‚¬â€a moral injustice of the first orderÃ¢â‚¬ÂÃ¢â‚¬â€let me ask this basic question: Do you believe that there is a federal constitutional right to same-sex marriage?
Her answer couldn’t have been more clear:
There is no federal constitutional right to same-sex marriage.
This answer may be startling to the American Family Association, which sent a mass e-mail to its members on Monday citing what they called “her apparent opposition to the Defense of Marriage Act.”
Further investigating the issue, Sen. Cornyn asked:
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.
I do not recall ever expressing an opinion on this question.
“Ms. Kagan has already tipped her hand on one of the most important issues that is likely to come before the Supreme Court,” American Family Association President Tim Wildmon suggested, in a media advisory.
They also claimed that she “almost certainly” approved of a memo classifying the Defense of Marriage Act as “discriminatory.”
She did not, thus the “almost” indicating a statement of opinion, not fact.
Kagan does, however, support ending ‘Don’t Ask, Don’t Tell’ and has in the past been an advocate of non-discrimination policies.
Campus Progress, speculating as to her candidacy in a recent article, noted her history on this particular set of issues, summarizing:
Her most significant work is on the Solomon Amendment, legislation that withholds federal funds from colleges and universities when they ban military recruiters because the militaryÃ¢â‚¬â„¢s DonÃ¢â‚¬â„¢t Ask, DonÃ¢â‚¬â„¢t Tell policy conflicts with many universitiesÃ¢â‚¬â„¢ antidiscrimination policies. As dean, Kagan supported a lawsuit intended to overturn the legislation so military recruiters might be banned from the grounds of schools like Harvard. When a federal appeals court ruled the Pentagon could not withhold funds, she banned the military from HarvardÃ¢â‚¬â„¢s campus once again. The case was challenged in the Supreme Court, which ruled the military could indeed require schools to allow recruiters if they wanted to receive federal money. Kagan, though she allowed the military back, simultaneously urged students to demonstrate against DonÃ¢â‚¬â„¢t Ask, DonÃ¢â‚¬â„¢t Tell.
Throughout the controversy, Kagan maintained contact with Harvard Law SchoolÃ¢â‚¬â„¢s LGBT community. She attended a meeting of the student group Lambda and spoke with its leaders. Kagan has shown her commitment to advocating for LGBT rights, and it seems clear that KaganÃ¢â‚¬â„¢s experience battling DonÃ¢â‚¬â„¢t Ask, DonÃ¢â‚¬â„¢t Tell on campus demonstrates she understands the needs of Harvard LawÃ¢â‚¬â„¢s gay and lesbian community.
Behind the tinted frame of prejudices, Jeffrey Toobin writes for The New Yorker that he’s been friends with Kagan for many years, offering a bit of insight as to who she is as a person as opposed to a label.
So whatÃ¢â‚¬â„¢s she like? Smart, self-confident, funny. Even in law school, which was full of highly intelligent people (just ask them), Kagan stood out from the start as one with a formidable mind. SheÃ¢â‚¬â„¢s good with people. At the time, the law school was a politically charged and divided place. She navigated the factions with ease, and won the respect of everyone. Almost three decades later, those qualities were much in evidence during her famously successful tenure as dean of Harvard Law School.
President Obama described Kagan as:
Elena is widely regarded as one of the nationÃ¢â‚¬â„¢s foremost legal minds. SheÃ¢â‚¬â„¢s an acclaimed legal scholar with a rich understanding of constitutional law. She is a former White House aide with a lifelong commitment to public service and a firm grasp of the nexus and boundaries between our three branches of government. She is a trailblazing leader — the first woman to serve as Dean of Harvard Law School — and one of the most successful and beloved deans in its history. And she is a superb Solicitor General, our nationÃ¢â‚¬â„¢s chief lawyer representing the American peopleÃ¢â‚¬â„¢s interests before the Supreme Court, the first woman in that position as well. And she has won accolades from observers across the ideological spectrum for her well-reasoned arguments and commanding presence.
Kagan has not publicly commented on her sexuality. At this point, everything else is speculation, much of it particularly mean-spirited.