Politico Misses Kagan '09 Statement on DOMA Story: 'There Is No Federal Constitutional Right To Same-Sex Marriage'

So, Politico jumped the shark on gay marriage yesterday in reporting that Justice Elena Kagan that she had a ‘gotcha’ moment during yesterday’s hearings on the Defense of Marriage Act.

But a real ‘gotcha’ moment would have been if Politico did their homework and resurrected Kagan’s past comments about gay marriage from 2009, when she was awaiting confirmation to the post of solicitor general and she insisted in the answer to a questionnaire that “there is no federal constitutional right to same-sex marriage.”

In Elena Kagan's DOMA 'Gotcha' Moment, Jennifer Epstein and Josh Gerstein gushed that:

…in a rare “gotcha” moment — in the eyes of many in the audience — at the high court on Wednesday.

In discussing the origins of the law, Paul Clement, who represents the Bipartisan Legal Advisory Group, said that Congress’s key interest in passing DOMA was preserving the uniform treatment of couples in various states at a time when there where indications that some states might allow same-sex marriages.

But Kagan fired back in her questioning, telling Clement that Congress wasn’t preserving tradition, but departing from it when it jumped into the marriage issue. “The only niformity that the federal government has pursued is that it’s uniformly recognized the marriages that are recognized by the state,” she said. Congress’ foray into the issue in 1996 was so unusual that it “sen[t] up a pretty good red flag,” she said.

A short time later, Kagan read aloud from the House Judiciary Committee report on DOMA. “Congress decided to reflect and honor of collective moral judgment and to express moral disapproval of homosexuality,” she said, quoting the report.


This apparently drew gasps and laughter from the crowd.  

Yet, let’s do a flashback to 2009. Kagan was nominated to be the United States Solicitor General -- the officer of the executive branch who represents the United States in controversies and cases which go before the U.S. Supreme Court -- and was specifically asked about DOMA and same sex marriage (emphasis mine):

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.

William A. Jacobson of Legal Insurrection noted this piece of history on March 25, but wrote about this development as far back as May of 2010 – when he posted that Kagan meant what she said.  This was after some conservative commentators criticized Jacobson for taking Kagan's remarks too literally with his original post.

In a March 18, 2009 letter (embedded below, at pp. 11-12), which is not publicly available but which [National Review's Ed] Whelan kindly provided to me, Kagan supplemented her written answers at the request of Arlen Specter. Here is the language in the letter seized upon by my critics to show that Kagan really didn’t mean what she said, and really just was opining as to the current state of the law:

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.

These sentences do make it seem as if Kagan walked away from her prior written statement that “[t]here is no federal constitutional right to same-sex marriage.”

But these sentences are not the full supplemental response. Immediately preceding these sentences was the following language:

I previously answered this question briefly, but (I had hoped) clearly, saying that “[t]here is no federal constitutional right to same-sex marriage.” I meant for this statement to bear its natural meaning.

When the full supplemental statement by Kagan is read in context, there is nothing to suggest that Kagan was walking away from her written statement that there is no federal constitutional right to same-sex marriage.

Of additional interest is that when the Massachusetts Supreme Court found a state constitutional right to same-sex marriage, 18 Harvard Law School professors signed onto an amicus [i.e., friend of the court] brief supporting that ruling. But not Kagan.

So, it seems that when it comes to finding ‘gotcha’ moments that benefit the liberal political agenda, Politico just really isn’t that good. Either that or it isn't interested in challenging the liberal narrative by, you know, actually reporting Kagan's apparently convenient evolution on the question of whether the Constitution provides for a federal right to same-sex marriage.