More Kagan: the key to ‘marriage equality’?

Margaret, over on on NRO’s Corner Maggie Gallagher says that Kagan will be the lynchpin for same-sex marriage in all 50 states:

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.

 

Todd M. Aglialoro

By

Todd M. Aglialoro is the acquisitions editor for Catholic Answers.

  • Michael

    It is at the state level that voters have been moving to block the gay marriage agenda. The danger is now as it has always been that the Federal Government will force gay marriage onto the states against their wills. Just as the Supreme Court overrode state prohibitions against abortion with the Roe v. Wade decision making abortion on demand something we have not been able to overturn so will Obama’s nominees attempt to make gay marriage a federally guaranteed right. A federal amendment protecting heterosexual marriage is no more likely than a federal pro-life amendment. If nullification does not work in this instance this will be just one more argument in favor of secession.

  • Todd M. Aglialoro

    A federal amendment protecting heterosexual marriage is no more likely than a federal pro-life amendment.

    I disagree. Traditional marriage is still, more or less, the status quo. The median American public is comfortable with a certain moderate level of abortion, won’t give it up. We haven’t reached that level of comfort with — of reliance on — same-sex marriage yet. If we had made a unified push for a constitutional amendment ten years ago, we would have stood an even better chance.

    But I agree of course that same-sex marriage will be delivered to the whole country in one big federal whomping, regardless of states’ laws. That’s why a federal strategy was and is the only one with a chance of success.

  • Michael

    If we had made a unified push for a constitutional amendment ten years ago, we would have stood an even better chance.

    But I agree of course that same-sex marriage will be delivered to the whole country in one big federal whomping, regardless of states’ laws. That’s why a federal strategy was and is the only one with a chance of success.

    Maybe. There did not seem any will in Congress at the time to push such an amendment through despite it being proposed. The only way to force it on states is to declare it a constitutional right incorporated by the 14th amendment and thus trumping state constitutions. If they do that it will only result in more contempt and disgust with an over-reaching federal government. It is difficult to know what will happen but the Republicans in the Senate probably will not have the stuff to muster a filibuster of her nomination like they should.

  • Oppose Kagan

    Sign a petition against Kagan:
    http://www.iopposekagan.com

    Facebook page against Kagan:
    http://www.facebook.com/StopKagan

  • Austin

    it should be noted that referendums authorizing gay marriage even in states like California, have failed. Given, how the Federal Government has intruded into areas where they have no business again and again [see 10th Amendment], I am inclinded to leave this issue of gay marriage up to the States who have typically done the right thing. I am wary of a Constitutional Amendment, as these are cumbersome and I view this as an intrusion of the Federal Government into an area reserved for the States.

    If California has voted down gay marriage, and they have, you can be sure that Indiana, Tennessee, Iowa, etc will do likewise if required. No more Federal power grabs.

  • Todd M. Aglialoro

    I am inclinded to leave this issue of gay marriage up to the States who have typically done the right thing. I am wary of a Constitutional Amendment, as these are cumbersome and I view this as an intrusion of the Federal Government into an area reserved for the States.

    How’d states rights work out for abortion?

    I don’t care how many states pass their own DOMAs or referenda. One way or the other, they’ll get same-sex marriage. Either a) their state courts will impose it, will of the people be damned, b) the slow attrition of states’ adopting same-sex marriage or civil unions, along with the propagandizing effect of media culture, will bend people’s wills in favor of it, or c) the Supreme Court will rule 5-4 that it’s unconstitutional to deny marriage to same-sex couples, including in its ruling some new Mystery Clause related to marriage.

    A constitutional amendment defending marriage is not a federal power grab, it’s a hedge against one.

  • Michael

    I don’t care how many states pass their own DOMAs or referenda. One way or the other, they’ll get same-sex marriage. Either a) their state courts will impose it, will of the people be damned, b) the slow attrition of states’ adopting same-sex marriage or civil unions, along with the propagandizing effect of media culture, will bend people’s wills in favor of it, or c) the Supreme Court will rule 5-4 that it’s unconstitutional to deny marriage to same-sex couples, including in its ruling some new Mystery Clause related to marriage.

    State courts can be overridden by the people as they were in California. Only the federal Supreme Court has the power to force this on us. I do believe that Kagan’s nomination is probably related to any potential appeal of a state’s constitutional amendment making it to the SCOTUS. Federalism properly understood would make the success of such an appeal unlikely though.

  • Mark

    Another Obama appointee who has never had a real job. Since she is not a judge, we might have to go back to her Princeton Thesis to learn what she truly believes:

    “In our times [this was 30 years ago], a coherent socialist movement is nowhere to be found in the United States.
    Americans are more likely to speak of a golden past than of a golden future, of Capitalism’s glories than of socialism’s greatness.
    Conformity overrides dissent; the desire to conserve has overwhelmed the urge to alter. Such a state of affairs cries out for
    explanation. Why, in a society by no means perfect, has a radical party never attained the status of a major political force? Why,
    in particular, did the socialist movement never become an alternative to the nation’s established parties?”

    I’ve heard the word “moderate” used on more than one occasion today to describe Ms. Kagan. If an Ivy League-lesbian-Socialist is now considered “moderate” what would describe someone on the left?

  • Todd M. Aglialoro

    State courts can be overridden by the people as they were in California. Only the federal Supreme Court has the power to force this on us.

    Every state has its own mechanism for dealing with these things, some giving the people more power than others. And the game’s not over in California, not by a long shot.

  • Michael

    Every state has its own mechanism for dealing with these things, some giving the people more power than others. And the game’s not over in California, not by a long shot.

    The game is not over in California because the deck is being stacked to get the federal government involved. The last petition effort to overturn Proposition 8 failed to gain enough signatures. The issue seems settled there at least for awhile.

  • Stuart

    Another Obama appointee who has never had a real job. Since she is not a judge, we might have to go back to her Princeton Thesis to learn what she truly believes:

    “In our times [this was 30 years ago], a coherent socialist movement is nowhere to be found in the United States.
    Americans are more likely to speak of a golden past than of a golden future, of Capitalism’s glories than of socialism’s greatness.
    Conformity overrides dissent; the desire to conserve has overwhelmed the urge to alter. Such a state of affairs cries out for
    explanation. Why, in a society by no means perfect, has a radical party never attained the status of a major political force? Why,
    in particular, did the socialist movement never become an alternative to the nation’s established parties?”

    I’ve heard the word “moderate” used on more than one occasion today to describe Ms. Kagan. If an Ivy League-lesbian-Socialist is now considered “moderate” what would describe someone on the left?

    How do you know if Ms. Kagan is a lesbian? Just because she is single and unmarried (which happens to be the case of millions of heterosexual people in this country)does not make her gay. Unless we hear some public announcement on her part, I think it would be wise to refrain from making such statements with regards to her sexual orientation.

  • Stuart
  • RK

    How’d states rights work out for abortion?

    How’d a constitutional amendment work out for abortion? There isn’t any real effort to reverse Roe on either the Court or congress. The Court is bound by Stare decisis and the GOP has no real motivation other than the obligatory campaign rheoric. The Bush administration never curtailed funding of Planned parenthood.

    Unless the abortion issue becomes a state issue I believe it’s pipe dream to think there is any hope in Washington.

  • Brandon

    Ms. Kagan will not change the “ideological makeup” of the Court. The fact that she was not a judge before will not gain much traction considering the number of previous “non judges” that have sat on the court. Say what you will, her academic achievements are impressive. Can she do the Job? I think she can. The question is, do we want her to do the job? One liberal replacing another liberal is nothing to really get in a huff over. With that said, I find her views on Abortion and Marriage to be repellant. Is that enough to disqualify her from the High Court? Maybe. Our culture has become so Morally Degenerate, to expect the Supreme Court to reverse Abortion and protect Traditional Marriage is its own “Judicial Activism” and is naive to put it mildly. Abortion and Homosexual “Marriage” are a result of Moral Decay…something that Court decisions and Republicans slapping the podium will never fix. It is closing the barn door after the animals have escaped.

  • georgie-ann

    all kinds of possibilities lurk behind “impressive academic credentials,”…pride for one,…high probability of liberal anti-faith positions,…one needs to know a lot more than that,…

  • Ann

    There is no point in discussing this nomination IMO. Discussing it is ok, but opposing it is futile.

    It is a done deal. The left will line up behind it and it will be signed, sealed and delivered.

    Elections have consequences.

  • Todd M. Aglialoro

    How do you know if Ms. Kagan is a lesbian? Just because she is single and unmarried (which happens to be the case of millions of heterosexual people in this country)does not make her gay. Unless we hear some public announcement on her part, I think it would be wise to refrain from making such statements with regards to her sexual orientation.

    Stuart, Google is your friend–check it out before you press the indignant button. Pro-gay websites across the internet are claiming Kagan as one of their own. And the MSM has been whispering about her rumored alternative lifestyle since her name first surfaced last month.

    Maybe she is not a lesbian. But speculation that she is goes far beyond the fact that she’s single. And as I said above, it makes political sense for Barack Obama, the king of identity politics. First a “wise Latina,” now a lesbian Jewess. He’s getting all his boxes checked.

  • Todd M. Aglialoro

    How’d a constitutional amendment work out for abortion?

    Never tried. But we HAD a federalist approach to abortion, prior to Roe v Wade. We saw how that ended. The same will happen to marriage.

    Also see my reply above re: the difference in the political status quo between abortion and same-sex marriage.

  • Michael
    How’d a constitutional amendment work out for abortion?

    Never tried.

    A whole generation of political activists worked tirelessly to get to the point where a Human Life Amendment could be added to the Constitution. They found themselves shafted by the second Bush administration, you know…Republicans. The same Republican party leadership similarly had no interest in passing a Defense of Marriage amendment when they had the opportunity to do that. Social issues make good election year rhetoric for them and nothing more. Attacking these issues at the state level is the only route that has provided any real success over the last decade.

  • RK

    Suggesting that a constitutional amendment on traditional marriage can be passed implies that there is a sizable interest group in Congress that would go along with passing such a federal law. It’s certainly a noble goal but it seems like an impossible task. Getting 2/3 of the House and Senate to support such a thing requires an awful lot of faith in federal legislators to have the collective political will of pushing through against the inevitable special interests who would marshal a vocal and unrelenting opposition. I don’t think they have the fortitude for such a fight.

    At best it might generate a cottage industry in Washington that is advocating for such an amendment. There are scores of lobby groups in Washington fighting impossible odds for certain issues and raising funds from proven mailing lists. In my opinion, pro life lobbyists sometimes fall into this category.

    It seems that state level politics has become much more effective at representing the true will of the people. While some states would certainly be quick to legalize gay marriage most would be opposed and set up obstacles.

  • Todd M. Aglialoro

    A whole generation of political activists worked tirelessly to get to the point where a Human Life Amendment could be added to the Constitution.

    You’re misunderstanding me. Yes, I know that there have been efforts towards a Human Life Amendment. And I know (because I read it ad nauseum) that the Republicans really aren’t serious about stopping abortion (leaving aside parental consent, partial-birth bans, pro-life justices, etc) and that they just use pro-lifers for their own nefarious purposes. FINE.

    My point however is that we actually HAD a state-by-state arrangement for abortion and the Supreme Court trumped it. Maybe the best strategy now is to try to return to that arrangement and fight local battles. I think there are problems with this, but it’s a reasonable strategy given the point in the battle at which we find ourselves.

    But with marriage, the Supreme Court hasn’t trumped the states yet. The state by state battles continue — some winning (for now), some losing (both fairly and unfairly). There’s still a chance to pre-empt the inevitable federal fiat.

    Whether or not this is feasible, or specifically that the Republicans would do it, isn’t the point. But as to that point, as I said in another reply, I think we’re still far less advanced on the path to same sex marriage than we are entrenched in the status quo of legal abortion. There’s a real difference here.

  • Mark

    “Unless we hear some public announcement on her part, I think it would be wise to refrain from making such statements with regards to her sexual orientation” – Stuart

    I like this concept.. unless people come out and make public statements that they are “racist, sexist, homophobic” etc, liberals will refrain from labeling them as such.

    Oh, you might find this interesting also:
    http://prayinjesusname.org/kagan

  • Stuart

    “Unless we hear some public announcement on her part, I think it would be wise to refrain from making such statements with regards to her sexual orientation” – Stuart

    I like this concept.. unless people come out and make public statements that they are “racist, sexist, homophobic” etc, liberals will refrain from labeling them as such.

    Oh, you might find this interesting also:
    http://prayinjesusname.org/kagan

    To Mark:

    What I meant to say at the time was that we should not draw conclusions on her sexual orientation based primarily on appearance or rumor. And that we should take great care in making such statements. Naturally, if she should “come out” and say so then we’ll know.

    It’s just that there is so much about this woman that we don’t about yet, but we will eventually once the confirmation process gets underway. For now I would rather keep my silence and wait for more information.

  • Michael

    You’re misunderstanding me.

    Todd,
    I don’t want you to misunderstand me either. The Pro-life movement has never formally repudiated the human life amendment approach. The unpleasant reality is that that approach has yielded little fruit over the last three decades now. Our biggest advances have come at the state level where we have chipped away at the unrestricted “right to abortion” with myriad laws. When the specter of “gay marriage” social conservatives found much more success at the state level than they did trying to convince anyone in Congress or the White House that they should represent us on this issue. It ended up being a question of what strategy was actually successful in the political world. Kagan will be a reliable vote that “gay marriage” be considered a Constitutional right when that issue gets to SCOTUS. I don’t know if there is anything any of us little people could have done differently to prevent this.

  • Michael
  • Todd M. Aglialoro

    I don’t want you to misunderstand me either.

    Michael, I have no problem with what you’re saying. On the pro-life front I favor a multi-pronged, incremental strategy that includes state as well as federal efforts. It’s true that I’m concerned about the pure “back to the states” approach, because down the road I don’t see how our country can endure if some states permit the killing of unborn babies and others don’t. Abortion is not the speed limit or drinking age. Nonetheless I’ve never once argued that pro-life efforts should be solely concentrated at the federal level, still less that they should be all-or-nothing like the Human Life Amendment.

    That said, I can’t stress enough that the HLA and a Federal Marriage Amendment are fundamentally different fights, in that the federal government has yet to impose same-sex marriage like it did with abortion on demand. It surely will, given enough time. But it can be nipped in the bud — and that’s a thousand times easier than undoing something after the fact (which a Human Life Amendment would have to do).

    It may be that there’s seemingly more tangible, encouraging progress to be made on the state level, where democracy works more purely. But all our state fights in favor of marriage will be nullified in a single court ruling if we don’t pass a Federal Marriage Amendment.

    I don’t know if there is anything any of us little people could have done differently to prevent this.

    We could have elected a different president. Like Ann said, elections have consequences.

    On this point, to those who are saying this is a non-issue because Kagan’s rulings won’t be much different from Stevens’s: Kagan is 50 years old, and the SCOTUS is a lifetime appointment. Sotamayor, Kagan, and perhaps the replacement for Ginsburg will ensure that America’s folly in electing Obama reverberates into the next generation.

  • Pat

    And Todd, you might want to do a bit more Google research:

    http://tinyurl.com/28uoykr

  • Todd M. Aglialoro

    And Todd, you might want to do a bit more Google research:

    Thanks. I will — right after I invent a time machine that allows me to reference articles written after I post on something.

    And of course I never said she was gay; what I said to Stuart was that the speculation that she was went far beyond the mere observation that Kagan is “single and unmarried.” In a later post Stuart tried to revise his point, claiming that he was speaking out against judgments made based on appearances and rumor — but that’s not what the “voice of reason” said the first time.

    I’ll repeat, for the last time, that it’s gay groups and fellow-travelers who have been leading the whisper brigade on this topic. “Queerty,” “Pink News,” et al. sure seem to think she’s part of the sisterhood. It wouldn’t shock me if this were revealed sometime late in the first year of her tenure on the bench, no matter what her bff says in that link you provided.

  • Stuart
    And Todd, you might want to do a bit more Google research:

    Thanks. I will — right after I invent a time machine that allows me to reference articles written after I post on something.

    And of course I never said she was gay; what I said to Stuart was that the speculation that she was went far beyond the mere observation that Kagan is “single and unmarried.” In a later post Stuart tried to revise his point, claiming that he was speaking out against judgments made based on appearances and rumor — but that’s not what the “voice of reason” said the first time.

    I’ll repeat, for the last time, that it’s gay groups and fellow-travelers who have been leading the whisper brigade on this topic. “Queerty,” “Pink News,” et al. sure seem to think she’s part of the sisterhood. It wouldn’t shock me if this were revealed sometime late in the first year of her tenure on the bench, no matter what her bff says in that link you provided.

    Todd:

    On my first post I was admonishing Mark about calling someone out as gay/lesbian unless we know for sure that it is a fact (i.e. “coming out”). What I said in my second post (which you termed as a revision) was merely an elaboration on what I said to Mark earlier–that we shouldn’t draw conclusions based on appearances and rumor. And now this morning I read that noted gay journalist Andrew Sullivan–who first started the rumors that Kagan was gay–is now backpeddling on his remarks after several of her friends have come out to say she is straight!
    I got this from off of an AP report this morning, unfortuantely I can’t find the cite.

  • Mark

    Stuart, the last time I felt this way was a couple of years ago while commenting at other sites regarding Obama voting against Infants Born Alive act. I have lived in the Chicago area my entire life and am one of a handful of folks who voted for Alan Keyes over Barack Obama. For exposing Obama as a dishonest man who supports infanticide, I was called an ignorant liar.. among other things from the lefties. When the evidence proved me right, they ran away in silence, as usual.

    Jill Stanek explains it well in this video:
    http://www.youtube.com/watch?v=f4B3O9uUc-4

    I mention that to remind you that this administration has no credibility and their propaganda film on Kagan should be ignored.

    I’ll make you a wager (if you are one of the very rare liberals who has the courage to back up your opinions) Since fewer than 5% of the American population is gay, how about if I put up $50-(that Kagan turns out to be gay) to your $500- (that she turns out to be straight) since you don’t think there is any credible evidence to the contrary? Please note that I should be getting better than 20:1 odds and am asking for 10:1

    I’ll even donate the money to Inside Catholic if I win.

    What do you say Stuart, are you willing to walk the walk, or are you just a typical liberal who only talks the talk?

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