Contrary to rumors, Kagan does not believe in federal marriage equality

You'd never know from reading Monday's headlines, but Obama's Supreme Court nominee does not believe in the constitutional right to marriage equality.

Yes, in spite of conservatives jeering she must be a lesbian and therefore unqualified to serve, and in spite of fanning speculation as to her sexuality even by liberal commentators, one entry in a questionnaire she took before confirmation as solicitor general reveals her position in black and white.

Sen. John Cornyn (R-TX)'s specific question, found on page 28 of this Senate Judiciary Committee document, was:

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?

Her answer couldn't have been more clear:
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There is no federal constitutional right to same-sex marriage.

This answer may be startling to the American Family Association, which sent a mass e-mail to its members on Monday citing what they called "her apparent opposition to the Defense of Marriage Act."

<snip>

Kagan does, however, support ending 'Don't Ask, Don't Tell' and has in the past been an advocate of non-discrimination policies.

More:
http://www.stumbleupon.com/su/1fzrhx/rawstory.com/rs/2010/0510/contrary-rumors-kagan-federal-marriage-equality//r:t

There is, however, the full faith and credit clause and states control marriage law.

Ergo, if one state recognizes a same sex marriage, those married in that state must be recognized as being married in all states.

The "establishment" and "free exercise" clauses of the First Amendment.

You might want to actually read it some time and you might understand WTF I am talking about.

Show me in the constitution where marriage is a power granted the federal government.

You cannot, ergo by the tenth amendment the power to grant marriage is a power reserved to the states or to the people.

Under the full faith and credit clause, however, if one state recognizes a marriage, all states must reciprocate and recognize that marriage.

We work within the confines of existing law and constitutional doctine. There is no such thing as marriage under the constitution as that is a power reserved tot eh states under the constitution. We must work within the confines of the constitution regarding marriage rights, ergo, we must look to the full faith and credit clause when applying law regarding marriage.

This was the essence of Loving v. Virginia and is why a same sex marriage sanctioned in one state must, constitutionally, be recognized in all states.

That is how we deal with this.

About half the states allow first-cousin marriage, the other approximate half do not. Yet, a first-cousin marriage in a place where it is legal is always recognized when that couple moves to a state where it is not recognized. This is the solution to the problem.

No, I am not saying that same-gender equal marriage is the same thing as marrying your cousin. What I am saying is that the full faith and credit provisions of our Constitution treat both sorts of marriage the same. Or at least they will after the SCOTUS gets a test case on these grounds, anyway.

At this point, there is no equivalent precedent for same sex marriage as the Loving v. VA decision for interracial marriage. Once a test case is brought, however, the SCOTUS will either have to rule in favor of the full faith and credit clause protecting same sex marriage protected by Massachusetts or any other state where same sex marriage is legal under the state law or they must overturn Loving v. VA, which I am certain even the most egregiously wingnut members of the court would be loathe to do. Especially Thomas since if Loving were overturned his own marriage to Virgina Lamp Thomas would be illegal in many states.

:rofl:

there is no constitutional right to opposite-sex marriage, either.

There you are, DOMA explained in just four words.

a few more words explaining DOMA.

:(

Civil unions cut the churches out of the gravy train. I like that.

Governments have no business weighing in on whose religious ceremonies it will endorse and whose it will not.

Civil marriage is a "contract" between two persons. It should be open to all.

If your particular denomination chooses to accept and bless your union, good for them. If they choose not to do so, well, find yourself another denomination.

Separate but equal is not equality.

grant the same rights as a couple who go for the church show, I have no problem. I didn't need the blessings of some costumed guy to be married to a wonderful girl. The ceremony is meaningless, the official contract is what makes it real in the eyes of the state.

If a particular church refuses to perform same sex weddings, fuck em. Find another.

Yeah, we did go the route of a wedding, but we did it on our own terms. The minister wore his best Hawaiian shirt. His boyfriend was my best man.

The real truth was my best man performed a wedding ceremony for us weeks earlier. We exchanged vows and became husband and wife. We only did the marriage thing to get legal rights in our state, and to get her on my insurance policy. The show wedding before a minister got us some nice gifts we didn't really need, free beer, and an afternoon of partying.

BTW, yesterday was our 29th anniversary.

It is not a religious term at city hall. It is a legal term. And legally, it comprehensively confers rights and responsibilities that are not comprehensively conferred by any civil union in the United States. The issue is not that civil union laws are poorly written. The issue is that there is no valid reason that same sex couples should not be allowed to enter into the same legal contract as straight couples.

There is NO valid reason that same sex couples should not be allowed to enter into the same legal contract as straight couples.

Even if civil unions DID confer all the rights and responsibilities of marriage, having civil unions for gay people and marriage for straight people creates a class hierarchy that implicitly classifies gay people as "lesser" than straight people.

We already went through a period of separate water fountains in this country, thank you.

And for you dreamers who think that the answer is to replace the term marriage with civil unions for ALL couples, I have one question for you (besides the obvious one of just how do you expect the bigots in Texas and Virginia and Utah and Arizona and Florida and Maine and Kansas and North Dakota to react to the news that their "marriage" has been legally downgraded to "civil union"?):

Why is it necessary to change the terminology in order to grant rights to GLBT people?

Did we change the terminology when black people were allowed to marry white people? When Jews were allowed to marry gentiles? When US citizens were allowed to marry Canadian citizens?

How come nobody wanted the government out of the marriage business until gay people wanted to get married?

Happy anniversary.

That legal standing isn't from the mumbled words by some self appointed holy man, it's from that license you signed before witnesses. Just allow same sex individuals enter into the same contract that breeders are allowed to sign. If they want the pageantry, they can have a wedding at a church that isn't run by bigots.

When I got married, the minister said, you aren't married until you sign the papers. We signed and then he said that "now you're legal." The signing of the documents was the real civil marriage. All that came before was bullshit for the parents.

Marriage is the name of the legal contract between two people which establishes their rights and obligations to each other and to society as a couple.

THAT'S what marriage is.

It is a contract and any consenting adult is free to enter into a contract. I don't see why people of the same sex are barred from this particular type of legal contract.

You don't need the blessings of some imaginary being to sign a lease or a mortgage. The political interpretation of some bronze age writings should not deny me or anyone else from entering into a legal contract.

Married people don't. And they're still married. That's the point.

I suspect we're talking about the same thing, but the way you're phrasing it has me on edge. You seem to be saying that the legal term marriage should be replaced by the legal term civil union, and that marriage should be left to the religious yahoos. That's a common point of view, but it begs the question of why we need to change the terminology of a perfectly adequate legal definition soley to appease a bunch of religious bigots.

aspects should not be used to deny anyone the right to enter into that union. It shouldn't matter what it is called. The minister who performed our ceremony excluded deities from the text because he knew we were both Atheist. We are still legally married.

But they are. What's your solution?

contract.

White House Eliminated Pledge To Repeal Defense Of Marriage Act From Website

After ThinkProgress and other outlets noted last week’s changes to the Civil Rights page on whitehouse.gov, watering down language on the repeal of “don’t ask, don’t tell,” Tips-Q noted that the website also has completely eliminated the portion objecting to the Defense of Marriage Act. As late as April 28, the website highlighted President Obama’s commitment to “repealing” DOMA, as a cached image shows:



Today, the website states only that Obama supports full “federal rights for LGBT couples”:

He supports full civil unions and federal rights for LGBT couples and opposes a constitutional ban on same-sex marriage.

According to ProPublica’s Change Tracker, the changes to the DOMA language were made on April 30. During his campaign, Obama repeatedly pledged to seek to overturn the Defense of Marriage Act, telling The Advocate, “I for a very long time have been interested in repeal of DOMA.” During the primary campaign, he touted his longtime opposition to DOMA, in a strongly-worded “open letter” to the LGBT community:

Unlike Senator Clinton, I support the complete repeal of the Defense of Marriage Act (DOMA) -– a position I have held since before arriving in the U.S. Senate. While some say we should repeal only part of the law, I believe we should get rid of that statute altogether. Federal law should not discriminate in any way against gay and lesbian couples, which is precisely what DOMA does.

More:
http://thinkprogress.org/2009/05/04/white-house-website-doma/

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There is no federal constitutional right to marriage of any kind in the Constitution. Marriage in the United States is defined by the state which is why you have states who have approved same-sex marriage and states who have banned it.

This is why the mouth breathers on the right are so damn desperate to pass an amendment to the Constitution protecting heterosexual marriage and that's why they're so damn afraid of a case ever coming before the Supreme Court.

Constitutionally defining marriage would not only remove the states' choice, but it would reverse the choices already made in those states which have approved same sex marriage. It would also be the only amendment to the Constitution which deprives an individual of rights.

This is basis of the California suit against Prop 8. They want the amendment before a case ever comes before the court.

So Ms. Kagan is right and Senator John Cornyn obviously hasn't read the Constitution either but then he's a moron...

From the ruling:

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."

Now I'll grant you the court didn't explicitly say there is a "right to marriage" enshrined in the constitution, but it did find that any law that discriminate against persons (for marriage or for whatever purpose) on the basis of their race were violations of the tradition of equal protection and due process. The court basically ruled (my interpretation here) that marriage is a fundamental right and that governments may not decide that some persons should be deprived of that right. I'll go even further to say that marriage is a sacrament of the church and that no government has any business attempting to regulate the nature of what is essentially a religious ceremony.

To Fix Gay Dilemma, Government Should Quit the Marriage Business
By Alan M. Dershowitz
http://www.rossde.com/editorials/Dershowitz_marriage.html

There WERE people who wanted that, but they were a small fringe in the Humanist movement.

People get married at city hall and elsewhere all the time with nary a witch doctor in sight. Marriage has absolutely zero to do with religion legally, and there is no reason why the law should not determine the nature of the rights and responsibilities granted by marriage, as it does with any other contract.

If the religious whack jobs don't like gay people getting married, they can make up their own new word for whatever voodoo ceremony they deem appropriate. Gay people have as much claim to the legal term of marriage as any religious nut, and a much better argument for keeping it.

Very few rights are enumerated in the Constitution. The founders were quite plain, however, in not considering the bill of rights to be an exhaustive roster of rights.

The philosophy of THE CONSTITUTION YOU ENCOURAGE PEOPLE TO READ is that rights are not creations of government but are intrinsic to humans.

Discrimination in application and administration of the vast variety of unenumerated rights (rights the founders explicitly recognized the existence of) is barred by the 14th amendment as incorporated and, yes, the 14th Amendment is part of THE CONSTITUTION.

Since you have READ THE CONSTITUTION you know that there is no explicit right to abortion or even to using condoms.

Can we look forward to some all-caps screeds about the absurdity of people thinking they have a right to reproductive choice?

(Note that the above arguments are sufficient without even noting that the Supreme Court already explicitly rejected your view in barring anti-miscegenation laws.)

Righteous smackdown, brother.

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And you posting this rumor just makes you look uninformed.

You not knowing what a rumor is makes you look much less informed.

She answered a yes/no factual question.

That's like if I asked you the question, "Did plantation owners in the South own slaves during the Civil War?"

You answer "yes" because it's factual history.

Therefore I come to the conclusion that you agree with slavery because you answered a question about whether or not slavery existed.

question? That he was really interested in whether or not she knew that marriage of any sort is not a right expressly addressed by the Constitution? That he wasn't trying to find out if she did or did not believe that same-sex couples are entitled to the same rights and responsibilities that straight people enjoy (even though nowhere in the Constitution does it say that straight people can get married)? And that Kagan, (who is, admittedly, by all accounts a brilliant woman and an authority on the Constitution) saw through the superficiality of his question, which would seem apparent to a nine-year-old to be addressing her views on the rights of gay people to marry, and correctly answered his question with a simple statement of truth regarding the degree to which the Constitution addresses marriage, which they theoretically both already knew was zero?

Is that your contention?

a lawyer or someone with a law background.

Some people interpret everything they read based on how they revolve around their own personal views. Other people interpret things exactly as they are written and understand when their personal view is or is not called for. She correctly interpreted the constitution, as did you when you stated "even though nowhere in the Constitution does it say that straight people can get married" which is exactly what she did when she answered the question.

See, whether a question is superficial or not, someone who is beholden to the truth will answer the question as truthfully and direct as possible.

Cornyn was clearly asking her if she believed that same-sex marriage would be protected by the Constitution - as the rights and responsibilities of straight marriage are, even though it is not directly mentioned. Because the LAWS that determine those rights and responsibilities ARE protected by the Constitution. Because Cornyn knows that that's what a judge DOES: determines if and how the protections of the Constitution are applicable to the law in question. Conryn asked her, "Do you believe that there is a federal constitutional right to same-sex marriage?" She did not answer, "There is no federal constitutional right to same-sex marriage, because there is no federal constitutional right to ANY marriage." She did not answer, "In as much as opposite sex marriage is protected by the Constitution, so would same-sex marriage be." She answered, ""There is no federal constitutional right to same-sex marriage." Period.

Which means one of two things: she's playing a political shell game with gay equality, refusing to declare her support for what any decent person would agree is the right thing to do, or she honestly does not believe that gay people should have the right to get married.

Either way, I don't want her making decisions that will affect the course of my life.