HRC Blog

Kagan Grilled by Senate, Talks Marriage Equality

Yesterday, the Senate Judiciary Committee wrapped up two grueling days of questioning by members of the Committee. Members of the Committee spoke about LGBT issues ranging from the Employment Non-Discrimination Act to the Defense of Marriage Act, but the nominee limited her discussion to her professional record and judicial philosophy. As expected, much time was spent by members on the right grandstanding on the ill-informed notion that Kagan’s enforcement of Harvard Law School’s sexual orientation anti-discrimination policy was “anti-military” because it limited military recruiters from accessing students through the Harvard Law School Office of Career Services. However, a poignant defense of Kagan’s stance on the military came in the form of a letter from a service member in Afghanistan [PDF] who attended Harvard Law School while Kagan was Dean. In his letter, which was read into the record by Chairman Patrick Leahy (D-VT), First Lieutenant David Tressler stated:

To attack Ms. Kagan for a principled position she took as a law school dean that had no practical effect on military recruitment looks, from where I stand, like a political distraction. What the country deserves instead is a substantive debate over Elena Kagan’s judicial philosophy and her qualifications to interpret the Constitution and decide cases as a member of this nation’s highest court.

Kagan engaged in two informative exchanges with members of the Committee on issues that relate to marriage equality. First, Senator Jon Kyl (R-AZ) probed Kagan about her response in 2009 to a written question by Senator John Cornyn (R-TX) during her confirmation hearing to become Solicitor General. In answer to that question, Kagan stated, “there is no federal constitutional right to same-sex marriage.” When probed about this response by Senator Kyl, Kagan clarified that her response was intended to show that she understood that as Solicitor General she would need to be prepared to defend the Defense of Marriage Act against constitutional attacks, and that the current state of the law did not provide for a federal constitutional right to same-sex marriage. When asked by Senator Kyl if the Constitution “could be properly read to include such a right,” Kagan refrained from answering the question because the question is likely to come before the Supreme Court in the future. While her response to whether there is a right to marriage equality in the Constitution did not indicate how she would rule as a justice, it is promising to confirm our understanding that Kagan’s 2009 statement was not meant to preclude a future reading of the Constitution that would include a right to marriage equality. Second, Kagan had an informative exchange with Senator Chuck Grassley (R-IA) about Baker v. Nelson, a case in which the Minnesota Supreme Court ruled that Minnesota law limited marriage to opposite-sex couples and that this limitation did not violate the Constitution. In Baker, the Supreme Court issued a one sentence dismissal of an appeal of the Minnesota Supreme Court’s decision in Baker citing “want of a substantial federal question.” When asked by Senator Grassley about the precedential value of Baker, Kagan responded that Baker is commonly attributed to having some precedential weight, but not the same weight as a normal decision. Grassley said he was deeply disappointed that she did not say the Baker was “settled law,” and moved on to his next question. Now that the Committee has completed their questioning of the nominee, the Committee will hear from a variety of witnesses that will discuss Kagan and the Supreme Court. With Tony Perkins, President of the anti-LGBT Family Research Council, scheduled to testify before the Committee as a witness, it is certain that we’ll be hearing more about the issues that matter to our community as the hearings move forward.

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