A vote for Elena Kagan is a vote for “marriage equality,” which features in two key cases that will shortly be before the Supreme Court: Perry v. Schwarzenegger, which arises out of California’s Prop 8 but will apply to all 50 states, since it seeks to establish a federal constitutional right to gay marriage; and Gill et al. v. Office of Personnel Management, which seeks “only” to overturn the federal laws defining marriage as one man and one woman.
Liberal groups are playing it coy, calling Kagan a centrist of sorts, but the Human Rights Campaign just can’t help itself , praising Kagan’s “commitment to full equality under law for gay, lesbian, bisexual and transgender American.” You don’t need your Secret Decoder to decipher what “full equality under law” means for these people. Numerous gay-themed sites are also touting her as America’s first lesbian SCOTUS justice. Considering that gay advocates have been lately asking Obama when they’re going to get theirs, this makes perfect sense.
In her post, Maggie Gallagher also notes how Kagan, in her time as Solicitor General, made arguments about the federal Defense of Marriage Act (which her office is supposed to uphold) that have the effect of philosophically undermining it.
Me, I come out of reads like this confirmed in two conclusions:
1. Legally speaking, contraception birthed abortion in this country, and it’s soon going to give it a sibling. Legal abortion is built on the right to privacy established in the contraception case Griswold v Connecticut, and same-sex marriage’s legal foundation will be built (and has already been built, in state decisions) on the legal de-linking of marriage and procreation. If the purpose of marriage is no longer procreation and stable families (but instead something nebulous and private, like “a formal recognition of two persons’ shared love and committment,”) then the state’s compelling interest in mandating heterosexual marriage vanishes.
2. Pro-marriage people who are also avowed states-rights people, and thus favor only modest and local protections of marriage, are going to take that conviction with them to marriage’s funeral. There’s only one way to stop same-sex marriage from becoming a nationwide reality, and that’s through a constitutional amendment. Liberals, with their slippery slopes and leveraging of the legal system, once again are using conservatives’ principles and native restraint against them.