Elena Kagan says:

there is no federal constitutional right to hetero-sex marriage

"No right to same-sex marriage." She was very explicit in her answer.

But equal treatment under the law, is the pertinent issue.

But I don't hold out much hope.

There is no constitutional right to ANY kind of marriage, literally/specifically. Marriage is simply not addressed in the constitution.
Thanks.

"Loving v. Virginia" established a Federal right to marriage that can only be restricted under the strictest of criteria.

In Loving:

'The court ruled that Virginia's anti-miscegenation statute violated both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment. In its decision, the court wrote:

“ 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. ”

The Supreme Court concluded that anti-miscegenation laws were racist and had been enacted to perpetuate white supremacy:

“ There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification. The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy."'

There's the text. Loving established the right to marry.

Even if Kagan was just being disingenuous the fact that her nomination was allowed to stand after that remark was a slap in the face to every LGBT*.*. A similar comment about abortion would never be tolerated.

Loving established 'that the FREEDOM OF CHOICE TO MARRY not be restricted by invidious racial discrimination.'
(Emphasis mine.)

The Supreme Court established, in in Roe v. Wade, that a right to privacy under the due process clause of the 14th Amendment extended to a woman's decision to have an abortion, but that right must be balanced against the state's two legitimate interests in regulating abortions: protecting prenatal life and protecting women's health.

"There is no Federal Constitutional right to an abortion?"

Would you?

I understand what the Court has decided and what it hasn't decided. I also know what I would like it to do, and I have an idea about how likely what I want it to do actually is.

I also do not put words in Justices' mouths, or in Presidents' mouths, or in DUers' mouths.

Would you have a problem with a Democratic nominee who said, point blank, in a hearing:

"There is no Federal Constitutional right to an abortion."

Answer the question.

in nomination hearings, so I have no 'problems' with most of what they say.

Unfortunately our system forces them to be prepared to say little of substance. The job they're seeking does NOT allow them to pre-judge ANY issue which may come before them.

I am pleased with President Obama's nominees.

and I do not ask you to 'tolerate' anything.

WOULD YOU TOLERATE A DEMOCRATIC NOMINEE FOR THE COURT WHO WOULD SAY IN A CONFIRMATION HEARING THAT "THERE IS NO FEDERAL CONSTITUTIONAL RIGHT TO AN ABORTION"?

WOULD YOU OR WOULD YOU NOT?

Much of our constitutional rights are based upon negative rights. The same kind of distinction in the Koranic golden rule. DONT DO anything to another you would not have done to you. You are fundamentally misunderstanding the language.

but I'll do so now. Answer the question. Would you tolerate a Democratic nominee for the Court who said "there is no Federal Constitutional right to an abortion"? Yes or no?

Congress cannot infringe upon a woman's right to privacy, till viability, and certain other criteria. That is the truth, and how the constitution game is played. We dont have a constitution that gives positive rights. Those are aspired to, if not evoked, in the Declaration Of Independence.

In other words, race is an immutable condition, therefore you cannot be deprived of a right based on that immutable condition.

Similarly, your gender is an immutable condition. You can change it through surgery, but you are born with it and it is a condition that can only be changed with great difficulty. It is immutable.

If the right to marry cannot be denied based on race because race is an immutable condition, then it cannot be denied based on gender which is also an immutable condition.

Denying marriage to two men or to two women is denying it based on gender.

This is confused by the fact that so many GLBTs have thought of their right to marry as same sex marriage as opposed to heterosexual marriage. In every marriage relationship there are two people who decide to marry. That is the essence of marriage. If you cannot discriminate based on gender, then you cannot discriminate because the two fiances are men or women. That's how I see it.

But Loving v. Virginia has been interpreted for generations of lawyers to mean that marriage is a fundamental right. To say otherwise is to overturn some pretty basic law. This is first year law school stuff.

but your point is essentially correct, the 'right' to marry cannot be restricted by 'invidious discrimination.' The issue may arise sooner rather than later: Is gender-based distinction/discrimination entitled to the same sort of scrutiny, that is, 'strict scrutiny,' as is race-based discrimination.

People have to understand 14th Amendment jurisprudence to get the subtleties, and its not simple.

reasoning for denying the right of same-sex marriage. Same-sex marriage cannot be proved to have any detrimental effect on society. It is strictly a personal matter. The defenders of Proposition 8 tried to prove that same sex marriage could harm children, society, something or someone -- but they couldn't really produce any evidence to support their claims. So even if an intermediate scrutiny or a rational basis test were applied, I think that same sex marriage would have to be permitted.

avenues for arriving at legal decisions among the conservative SC judges.

Personal religious beliefs, other personal prejudices, and fealty to the GOP and the 1%, are often the primary criteria that the conservative SCOTUS justices use for making their legal decisions.

Bush v Gore is the perfect illustration of how conservative SCOTUS justices can completely ignore reason and logic, and legislate from the bench primarily according to the tenets of their political and/or religious ideologies, purely personal desires, and foremost, legislating in service of their 1% employers.

Baby boomers, Gen Xers and now Millenials. And that doesn't include the inter-boom/Xer period.

Do you say, "I have three apple?" Or "I have three apples?" I say the latter. But that might just be me.

One doesn't become a lawyer upon birth; likely takes at least 24 years.

Baby boomers born in 1948 would have been exposed in 1970. Gen Xers like me starting in 1967, college starting in 1987, Law School starting in 1991. That's enough for "generations". Millenials like my partner born in 1986, starting law school in 2009.

Generations.

Please don't think that math teachers can't add. We can. And if a math teacher acts you to double check your work, then just double check it. (Law school starting in 22 or 23 depending on date of birth/start of school and possibly lower for people who skipped grades.)

I started law school in '69, and my daughters REFUSE to become lawyers, though my father, uncles, cousin and brother did become lawyers. Generations.

I'm assuming your father and uncle are older than you. They would have likely gone through law school before Loving.

Your cousins (assuming they're first cousins) and brother are the same generation as you.

So you want to say that they're not teaching Loving in law schools, but they teach it to MBAs. Seems odd, but what the hell.

I have always thought that this aspect was one of the more damning of all these homophobic marriage amendments/laws.

but Court history and decisions as others have suggested "Loving v. Virginia" and even "Lawrence v. Texas" suggest that intimate relationships between TWO LOVING and CONSENSUAL individuals are protected by the Constitution under theories of right to privacy and as fundamental rights.

I cannot, based on the context of the link, draw a conclusion on her actual view on the issue. It would be, at worst, imprudent for her to comment publicly on an issue that might come before the Court.

I am not as much doom-as-gloom as the post suggests. I will wait until I see the substance of her position in an eventual ruling on this issue.

Heterosexual or homosexual, seems to me that it doesn't make any difference.

If you think I am making this up out of thin air. Read the Supreme Court decision in Loving v. Virginia. Marriage is a fundamental right. It is not identified in the Constitution. It simply is a fundamental right like breathing. It might arise from the Freedom of Association guaranteed in the First Amendment. But the First Amendment simply prohibits the government from interfering with your freedom of association.

Once again, marriage is a fundamental right. It isn't mentioned specifically in the Constitution, but it doesn't need to be.

Would you tolerate a Democratic nominee for the Court who said the same exact thing about abortion?

so there is o constitutonal right for any marriages. if people want to be single issue voters and not vote what's best for the country, then what are the rest of us to do about it?

Good bye. Have a nice day.

But the fact is there is not at the present time. That is what Kagan was saying. Just as there was no federal constitutional right to have an abortion in 1972. That changed with Roe v. Wade in 1973.

Obama is the most pro-gay president in history and that point is irrefutable.

that is still not saying much when you look at his predecessors. Of all of the post-Stonewall Presidents none of them except for Bill Clinton did anything positive. And what little good Clinton did went out the window with DADT and DOMA.

I thank the President for what he has done, and will vote for his re-election (especially knowing that the alternative is much worse) but I will still never forgive him for giving us Elena Kagan on the Court.

That kind of statement about anyone's civil rights should not have been tolerated. He should have pulled her at that point.

But the sad fact is that except for political expediency LGBT*.* rights don't count for far too many Democrats.

Yes, but we're talking about the President. I'm sure he was way too busy being a fierce advocate to notice.

The answer given is crafted for political purposes.
First it's a republican question (litmus test)


The ideological pure response would of ensured a filibuster.
That questioner was reviewed by how many legal and political experts before it was sent to the Senate?

the answer was unforgivable.

And as for prompting a filibuster? She SHOULD have been filibustered. And it should have been OUR side doing it. That statement disqualified her from the Court as far as I am concerned.

There absolutely should be. But there isn't.

There are only two ways you're getting something to be "constitutionally supported". That is (1) it literally says in the Constitution that XYZ. Or (2) a court precedent or more likely several court precedents have come to an ideological ("loose" interpretation of what the Constitution intends to say (ie. on things the founders could never have planned for... abortion for instance).

Thanks ever so much for coming to the LGBT (Group)!

that doesn't make her answer any less legally correct.

To quote from above: "There absolutely should be. But there isn't."


http://www.democraticunderground.com/?com=view_post&forum=1137&pid=16750

is that what she says (present tense) or is that what she said (past tense).

It's more than disappointing that she said it, which is unassailably true.

How much worse if she is still saying it and with frequency. I don't know the answer.

I hold out hope that in the context of hearing a case she will not be bound by what she said.

My guess, she will get it right.

In the question before it in the link provided she denounces DOMA: "“a profound wrong—a moral injustice of the first order”

The answer she gave to the next question is LITERALLY true. There is no constitutional right to same-sex marriage. Or marriage at all. Nowhere in the US Constitution is marriage mentioned at all.

She used clever wordplay to avoid what the question was really asking. I will restate that: She never actually answered the question you think she did.

The question was: "Do you believe that there is a federal constitutional right to same-sex marriage?" NOT *should* there be.

She replied: "There is no federal constitutional right to same-sex marriage." Which is legally accurate.

If you hadn't already typed this up, I would have tried.

Or just as much a coward.

Would Justice Ginsberg have given this answer?

It guarantees marriage rights? If it does, please show us where.

Thanks!




EDIT TO ADD: You may suggest the 14th Amendment. And in the future you may be right; I hope someday the Equal Protection Clause of the 14th Amendment is grounds for marriage equality. However, no such case has been ruled on by the court yet; therefore, the 14th Amendment can't be used to say that people have the Constitutional right to marriage. Because today it doesn't mean that. Because no one has ever made that case on the federal level and won. There is no precedent yet.

Damn that Obama!