Echoing a falsehood-laden report by CBS Evening News, The Washington Times falsely suggested that as a clerk for Supreme Court Justice Thurgood Marshall, Elena Kagan advocated for a constitutional right to same-sex marriage.
Times falsely suggests Kagan advised Marshall that all states must recognize same-sex marriage
From a June 8 Washington Times editorial headlined "Kagan's 'full faith' in same-sex marriage":
Ms. Kagan described to Justice Marshall a petition for high court review in which a New York prisoner serving a life sentence tried to force New York to recognize a “proxy marriage” into which he entered, via his attorney, in Kansas, even though New York law clearly forbade it. Ms. Kagan's memo explained that the prisoner staked his claim specifically on the Full Faith and Credit Clause. “I think the [petitioner's] position is at least arguably correct,” wrote Ms. Kagan.
Ms. Kagan's advocacy for legal privileges for homosexuals stands out because it comes in the midst of a career of avoiding controversy like the plague. In 1988, she was ready to advise Justice Marshall to ignore 49 years of precedent for a prisoner's marriage. Senators would be derelict if they do not ask if she would now ignore 71 years of precedent in order to spread same-sex “marriage” to states that do not want it.
In fact, the case about which Kagan was writing did not deal with same-sex marriage. The Times falsely claimed that in the memo, Kagan engaged in “advocacy for legal privileges for homosexuals.” In fact, in the case at issue, Robert F. Miner -- a prisoner sentenced to life in prison in New York State -- married a woman in Kansas, Laurie Marion, through a proxy. The marriage was void in New York, because prisoners sentenced to life in prison are considered “civilly dead” in New York and are not allowed to marry. Miner challenged the constitutionality of New York's decision not to recognize the Kansas marriage, and New York's highest court rejected Miner's challenge. Miner then appealed to the Supreme Court, and the Supreme Court ultimately decided not to hear the case. Neither the lower court decisions (retrieved via Lexis) nor Kagan's memo mentioned same-sex marriage.
In addition, in the memo the Times cited, Kagan was not “ready to advise Marshall” to find in favor of the prisoner's marriage. Kagan's memo actually merely advised Marshall to call for a response from New York State to Miner's filing. According to Kagan's memo, New York State initially waived its right to respond to Miner's request for the Supreme Court to hear the case, which is reportedly a common response. In a 2009 George Mason Law Review article written by David C. Thompson, a clerk for Justice Antonin Scalia at the time, and Melanie F. Wachtell, an attorney, the respondent waives the right to respond "[i]n the vast majority of cases." Kagan -- having read only the petitioner's [Miner's] brief -- advised Marshall to issue “a CFR,” a "call for response" from New York State. Kagan wrote:
Petr [petitioner] contends that respt [respondent] must, under the Full Faith and Credit Clause, recognize a proxy marriage that is valid in the State where contracted as valid in New York. The state courts did not address this Full Faith and Credit issue. I think petr's position is at least arguably correct and would recommend a CFR.
Kagan has said during proceedings on her SG nomination that "[t]here is no federal constitutional right to same-sex marriage." From Kagan's response to written questions from Sen. John Cornyn (R-TX) regarding her Solicitor General nomination:
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.
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 same-sex marriage?
Answer: There is no federal constitutional right to same-sex marriage.
In response to a follow-up question from Cornyn, Kagan said:
I previously answered this question briefly, but (I had hoped) clearly, saying that "[t]here is no federal constitutional right to same-sex marriage." I meant for this statement to bear its natural meaning. Constitutional rights are a product of constitutional text as interpreted by courts and understood by the nation's citizenry and its elected representatives. By this measure, which is the best measure I know for determining whether a constitutional right exists, there is no federal constitutional right to same-sex marriage.
Wash. Times echoes CBS Evening News' distortion of Kagan memo
Wash. Times echoes falsehood-laden report by CBS' Crawford. The Washington Times' distortion of Kagan's memo to Marshall echoes an assertion by CBS chief legal correspondent Jan Crawford in a falsehood laden June 3 report on Kagan's memos for Marshall. Crawford claimed that Republicans would use the memo “to say she would find a constitutional right to gay marriage.” From Crawford's report:
CRAWFORD: Kagan also wrote a memo Republicans will use to say she would find a constitutional right to gay marriage. That case involved a man who said the state of New York was required to recognize his marriage in Kansas, even though it was illegal in New York. Kagan told Marshall his position was “arguably correct.”