"There is no federal constitutional right to same-sex marriage." -Kagan

[VMI Dem]

States rights?

[DrToast]

1. Is there one for opposite-sex marriage?

I didn't think there was.

Is this really a big deal?

[dsc]

7. ah yeh

check Loving v Virginia and a whole line of other cases.

[DrToast]

8. Loving v Virginia is anti-discrimination, not pro-marriage

You can legally deny marriage to everyone, but you can't only deny it to some.

[Unvanguard]

15. Not exactly.

Loving v. Virginia said there was a right to marriage above and beyond the equal protection argument, and as dsc says, this doctrine has been built upon and expanded in later cases, including to areas where an equal protection challenge wouldn't have worked.

However, it is not a right to opposite-sex marriage any more than it was a right to same-race marriage: it is just a right to marriage, and all couples, absent a compelling state interest demanding otherwise, have it.

[DrToast]

18. Thanks...follow up question

Loving v. Virginia said there was a right to marriage

Where did they say this right came from?

[Unvanguard]

21. It is a Due Process Clause right.

So, part of the general right to "liberty" that cannot be taken without due process of law. The opinion says that marriage is such an important and personal aspect of our lives that denying it to people without a really good reason is inherently a denial of liberty.

[Xipe Totec]

11. That's not really a counterexample

The U.S. Supreme Court overturned the convictions in a unanimous decision, dismissing the Commonwealth of Virginia's argument that a law forbidding both white and black persons from marrying persons of another race, and providing identical penalties to white and black violators, could not be construed as racially discriminatory. The court ruled that Virginia's anti-miscegenation statute violated both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment. In its decision, the court wrote:

"Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival.... To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State."

The Supreme Court concluded that anti-miscegenation laws were racist and had been enacted to perpetuate white supremacy:

"There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification. The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy."

http://en.wikipedia.org/wiki/Loving_v._Virginia


If anything, it supports the case for same-sex marriage.

[Unvanguard]

14. There is one for marriage, not for opposite-sex OR same-sex marriage.

Like all constitutional rights, it does not only apply to certain manifestations of what it protects, but the broad sweep of them.

[jody]

2. Did she mean "no enumerated right" or "no right protected by the 9th"? n/t

[AtomicKitten]

3. Marriage is not mentioned anywhere in the Constitution. nt

[Jersey Devil]

4. How nice of you to repeat a Hannity talking point

with no link and absolutely no context.

Of course she could have been speaking as an advocate for the government, meaning that it is not necessarily her personal opinion. She also could have followed it up with something like: "but of course there must be equal protection of the law" but we'd never know by your post.

[robinblue]

23. but also straight from Obama's SC nominee.....

http://www.towleroad.com/2010/05/kagan-there-is-no-federal-constitutional-right-to-samesex-marriage.html


UPDATED: HRC response below.

Kagan's answer on a questionnaire for her confirmation as Solicitor General before the Senate Judiciary Committee is now being parsed:

Elena_kagan

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.

[YOY]

5. or opposite sex marriage...so technically she is right.

n.t.

[Starbucks Anarchist]

6. Link?

[Unvanguard]

9. Technically true.

First, no Supreme Court decision, nor any federal court decision for that matter, has stated that same-sex couples must be afforded marriage equality. Second, the (absolutely correct and compelling) arguments that same-sex couples are in fact entitled to marriage equality have nothing to do with a "federal constitutional right to same-sex marriage" (what would that even mean?), but rather equal protection and a general due process right to MARRIAGE broadly.

This statement of hers at a confirmation hearing (I think that's what it was?) for an entirely different office and role implies essentially nothing about how Kagan would rule on a same-sex marriage case. I, however, will go further: Kagan's clear and strongly-worded opposition to the Solomon Amendment and Don't Ask Don't Tell, coupled with her relative youth, her party affiliation, and the academic environment from which she came, lead me to think that she will almost certainly vote to overturn same-sex marriage bans (and DOMA) if/when those cases reach the Court.

[Aramchek]

10. from Repuke lips to your ears to DU

Thanks for nothing.

[cali]

13. Do you know the context

within which that comment was made? I don't. And I'll make a judgment about it AFTER I see it. That simply seems sensible.

[cali]

12. please post a link. such a comment is meaningless

without seeing the original context within which it was made.

[cbayer]

16. Context and some debate from a GLBT site

http://www.towleroad.com/2010/05/kagan-there-is-no-federal-constitutional-right-to-samesex-marriage.html

[Unvanguard]

17. Link to the blog post that this is probably referencing:

http://joemygod.blogspot.com/2010/05/kagan-on-same-sex-marriage.html

[Liberal_Stalwart71]

19. Marriage is not even mentioned in the Constitution.

Where did this alledged quote come from?

[PopSixSquish]

20. Surely You Have Read the Constitution at Some Point? I Think They Still Teach it at "The Institute"

At least they did back when my friends went there.

There is no federal constitutional right to any type of marriage which is why our breathern on the right are so gung ho to get the Federal Marriage Amendent has been introduced in Congress four times. The most recent vote being in 2006. They actually want special protections for heterosexual marriage.

In the United States, marriage is governed by state law and thirty states have passed state constitutional amendments defining marriage as being between one man and one woman. However, other states such as Iowa, Mass, NH, Vermont and Conn allow same-sex marriage.

So yes, technically it is a "states rights" issue, but then you probably knew that...

[dumpdabaggers]

22. There is not one for traditonal marriage either.

I think that is her point.