August 04, 2010

Kagan & CA Gay Marriage Decision

Statement of CFJ Executive Director Curt Levey:

Today’s activist court ruling striking down California’s traditional definition of marriage focuses attention on Elena Kagan’s troubling record of gay rights activism and, more generally, on what’s at stake if Kagan brings her “living Constitution” philosophy to the Supreme Court.

Whatever one thinks of gay marriage as a policy matter, it is clear that today’s decision by U.S. District Judge Vaughn Walker, one of two openly gay federal judges in the nation, is a particularly shameless example of judicial activism. Walker concluded that California’s traditional definition of marriage, affirmed most recently by voters’ approval of Prop 8, violates the Fourteenth Amendment’s Equal Protection Clause because the “purported rationales [for this definition] are nothing more than post-hoc justifications" by Prop 8’s proponents. But it is absurd to contend that the rationales that have justified a traditional definition of marriage for many thousands of years are post-hoc justifications. Moreover, there is nothing in the words, intent, or history of the post-Civil War Fourteenth Amendment – or any subsequent constitutional amendment – that suggests it applies to sexual orientation.

Instead, this is a classic example of a judge substituting his personal policy preferences for both the rule of law and the democratic will of the people – in this case, the will of the socially liberal voters of California who twice voted for a traditional definition of marriage.

There is little doubt that the California case will reach the U.S. Supreme Court and even less doubt about how Justice Elena Kagan would rule. There are numerous reasons to fear that Kagan will be an activist judge willing to put her liberal politics and personal feelings above the rule of law, but nowhere are those fears more well-founded than in the area of gay rights.

Not only did Kagan contravene federal law by denying military recruiters equal access to Harvard Law School students – citing the “moral injustice” of the military’s “don’t ask, don’t tell policy” – but she also allowed her strong feelings about gay rights to interfere with her duties as U.S. Solicitor General. At least twice, in cases involving challenges to the Defense of Marriage Act (DOMA) and the “don’t ask, don’t tell” policy, Kagan failed to vigorously defend federal law despite her institutional obligation and promise to senators to do so. Instead, Kagan maneuvered to avoid Supreme Court review of “don’t ask, don’t tell,” fearing it would be upheld, and “defended” DOMA with a brief that discarded the government’s strongest argument and called the law, signed by President Clinton, “discriminatory.”

That’s how Elena Kagan behaved when bound by institutional obligation and the accountability inherent in her at-will position as Solicitor General. Can there be any doubt that her passion for gay rights will trump the rule of law once she is freed of any accountability by a lifetime appointment to the Supreme Court?

Gay rights are not the only reason to be concerned about Elena Kagan and judicial activism. Judge Walker’s decision highlights the decades-long trend in which judges have usurped the role of democratically elected policy makers, becoming the ultimate arbiters of the great social issues of the day, from abortion to gay marriage and immigration. Knowing that these and many other controversial social issues will be decided by the Supreme Court, no senator can conscientiously justify a vote for Elena Kagan’s confirmation solely by referencing her intelligence and resume. Instead, as I recently argued
“A senator voting for Kagan should be willing to acknowledge that their vote is essentially a vote for same-sex marriage, strict gun control, partial birth abortion, racial preferences, ObamaCare, and the like. … In some blue states, constituents will have little problem with their senators casting a vote for Kagan and the liberal policies she is likely to pursue on the Court. But those states are the exception. … [P]olls indicate that, nationwide, Kagan is on the wrong side of the American people on the leading social issues by large margins.”

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