A related question: Would it matter to Democrats if she doesn’t? As everyone from Glenn Greenwald to NRO realizes, the left will rally around her no matter what she thinks simply because she’s the chosen one of The Chosen One. But let’s pretend that they cared. William Jacobson of Legal Insurrection points to this passage from her Judiciary Committee questionnaire to become Solicitor General:
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.
Jacobson’s conclusion, with which Patterico evidently agrees: Assuming she was answering truthfully, this is the end of Ted Olson’s dream of creating gay-marriage rights nationwide via the Equal Protection Clause. Is it, though? I read Kagan’s answer precisely the same way as Ann Althouse:
The question was phrased in the present tense. At the time Kagan answered the question, the Supreme Court had not yet said there was such a right, so she could say there is no right, in a narrow sense.
Now, you might think that if a person is ever going to find a right in the Constitution, it must be that the right is already there. But that is a view of the Constitution that fits with a strong commitment to sticking to the original meaning of the text, and I don’t think Kagan is on record or will ever be the sort of judge who says that constitutional rights are only what they were at the time the text was written. If the meaning of rights can grow or evolve or change over time, then one could say “There is no federal constitutional right to same-sex marriage” one day and, later, say that there is.
The path to finding a constitutional right to same-sex marriage is a very easy one at this point in the development of the case law. It is mainly a prudential, political attitude that will keep the Court from finding it now.
Right. Remember, Kagan’s been reluctant to share her legal views even with lifelong friends. She’s not going to divulge any more than she has to on a Senate questionnaire. What I think she was saying, with canny brevity, was that there’s nothing in the case law stating that a right to gay marriage exists. Earl Warren could have said in 1954, “There’s no federal constitutional right for blacks to attend public schools with whites,” and been technically correct for the same reason. To borrow a phrase, it depends on what the meaning of “is” is. Jacobson counters that Kagan wasn’t asked what the current state of the law is, she was asked whether she believes that a right exists, but I don’t see how that advances the ball. She could just as easily have said she believes there’s no right … based on her reading of existing precedent. Which is a fair enough answer for a would-be Solicitor General who’s trying to allay concerns that she’d refuse to defend DOMA in court; her point is, or was, that she’ll follow the law as it stands on the books. Thing is, Supreme Court justices don’t have to follow the books; they write the books and Kagan knows it only too well, so the GOP had better put this question to her again with a bit more refined phrasing this time. Although good luck getting her to answer it: Evidently, her views on what Court nominees should have to address during their hearings have “evolved” over time. Fancy that.
Exit question: If Jacobson’s right and Kagan really is a “no” vote on gay marriage, what will that earthquake measure on the nutroots freakout-o-meter? Scale of one to 10. (Answer: 15.)
Update: Advantage: AP! Ed Whelan digs up this “clarification” Kagan offered to the same-sex marriage question last year:
Pressed to clarify, Kagan stated (in a March 18, 2009 letter to Senator Specter, at pages 11-12):
“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.”
That’s a lame response (imagine how Ted Olson would answer the very same question), but that’s confirmation hearings for you.