Will Anyone Ask Kagan What The Meaning of “Is” Is?

posted at 9:15 am on June 30, 2010 by Legal Insurrection

There is a question no one has asked so far. What did Elena Kagan mean when she wrote, in a prior confirmation hearing when she was nominated for Solicitor General:

“There is no federal constitutional right to same-sex marriage.”

This statement, which seems pretty clear to me on its face, kicked off criticism of me from Ann Althouse, Ed Whelan, Allahpundit, and others, that I was being naive, and Kagan was just playing word games. The argument went that Kagan was merely summarizing the current lack of a ruling by the Supreme Court on the issue, and that “is” referred to the past and possibly the present, but not the future.

We are entitled to know if Kagan meant what she said, and said what she meant. Or if not, what did she mean?

The issue is not strictly gay marriage. Before any vote is taken, we are entitled to know if we have a nominee who so carefully parses words that “is” doesn’t mean “is,” it means “was.”

Cross-posted with updates at Legal Insurrection Blog

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