The invaluable Bill Jacobson tells us that the Elena Kagan nomination closes the door to gay marriage by way of Supreme Court cram-down a la Roe v. Wade:
But on one issue of critical importance to the left -- the constitutional right to same-sex marriage, Kagan has staked out a very clear and unequivocal position: There is no constitutional right to same-sex marriage.
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.Answer: There is no federal constitutional right to same-sex marriage.
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?
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.
Hmm. I take from that questionnaire that she firmly believes that pretending to disbelieve in a constitutional right to gay marriage was important to her political process; I think she is about as opposed to gay marriage as Obama himself and I am confident that she will grow in office (and be lauded for that growth!) as she comes to a more nuanced and sophisticated understanding of the issues.
As to the possible consequences, I am not so sure. My official editorial position has been that a Supreme Court cram-down of gay marriage would be divisive in a very similar manner to Roe v. Wade (and should not yet be compared to Loving v. Virginia). Since the gay rights agenda has been making progress through the legislative process, they should stick to that.
However, the flaw in the Roe analogy (it now seems to me) is that science is unlikely to settle the fundamental Roe-related issues of when life begins and where the soul resides. Forty years of experience with abortion simply cannot persuade opponents that innocent babies are not being murdered, so Roe can be divisive forever.
But gay marriage (and opposition thereto) is based more on culture than any underlying, unanswerable questions - generational attitudes are different, and a few years (or decades) experience with gay marriage would resolve most questions about whether it is a sensible social experiment. So if there is a Supreme cram-down and if we are lucky, we will eventually find that gay marriage is helpful or at least harmless, and move on. A court decision would trigger a culture skirmish, not a full lengthy war.
That said I still strongly prefer the legislative approach and will probably deplore Kagan's endorsement of a federal right to gay marriage when she eventually gets there.
FWIW: My evolving editorial position is that the analogy to Roe v. Wade does not work - after the eventual judicial cramdown of gay marriage a few years (or decades) ought to resolve the question of whether it was a sensible social experiment. Ongoing experience with abortion will not resolve questions about when life begins or where the soul resides so that contention can go on forever.