Elena Kagan said "There is no federal constitutional right to same-sex marriage," but does that mean that, as a Supreme Court Justice, she won't find that right?

That's my short answer to William A. Jacobson, who says that Elena Kagan is committed to rejecting the existence of a constitutional right to same-sex marriage. He writes:

In the course of her nomination for Solicitor General, Kagan filled out questionnaires on a variety of issues. While she bobbed and weaved on many issues, with standard invocations of the need to follow precedent and enforce presumptively valid statutes, on the issue of same-sex marriage Kagan was unequivocal.

In response to a question from Sen. John Cornyn (at page 28 of her Senate Judiciary Questionnaire), Kagan stated flat out that there was no constitutional right for same sex couples to marry (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 same-sex 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.

This doesn't mean that Kagan opposes gay marriage. But she clearly believes it is a matter for the political process, not a constitutional right.

When Bill Clinton famously said "It depends on what the meaning of the word 'is' is," he had a point. He made a legalistic distinction between his statement and lying. That first sentence sounded so absurd that we barely listen to the next part, which was:

"If ... 'is' means is and never has been, that is not--that is one thing. If it means there is none, that was a completely true statement....Now, if someone had asked me on that day, are you having any kind of sexual relations with Ms. Lewinsky, that is, asked me a question in the present tense, I would have said no. And it would have been completely true."

So back to that Kagan questionnaire. 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. Knowing the strength of popular opinion and fearing political retaliation against the judiciary, the Court might nevertheless say that there is no right to same-sex marriage. Indeed, there's some reason to think that Justice Kagan will refrain from seeing the right that is so easily visible up there on the path the case law has already opened up. As Justice Scalia wrote, dissenting in Lawrence v. Texas:

Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct....

One of the benefits of leaving regulation of this matter to the people rather than to the courts is that the people, unlike judges, need not carry things to their logical conclusion. The people may feel that their disapprobation of homosexual conduct is strong enough to disallow homosexual marriage, but not strong enough to criminalize private homosexual acts–and may legislate accordingly. The Court today pretends that it possesses a similar freedom of action... Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is “no legitimate state interest” for purposes of proscribing that conduct... and if, as the Court coos (casting aside all pretense of neutrality), “[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring,” what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “[t]he liberty protected by the Constitution”? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry. This case “does not involve” the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court. Many will hope that, as the Court comfortingly assures us, this is so.

So maybe Elena Kagan will "pretend" — to use Justice Scalia's word — that she has the freedom to draw the kind of line that — as Justice Scalia insists — only legislatures should be drawing. If she does, it will be out of a sensitivity to politics — an awareness of the vulnerability of courts and a preference for the resolution of difficult social issues through the processes of democracy. But the case law is there, the path is open, and on that path, as Justice Scalia complained, the right to same-sex marriage is quite apparent.