Kagan & Gay Rights, Part One

While the left accuses Kagan of buying into the warped Bush/Cheney version of presidential power (somewhat groundlessly — see this, but more on that later), The National Review asks whether she’s an immediate vote for gay marriage, and offers as proof the fact that she apparently removed a vital argument from her office’s brief in defense of the Defense of Marriage Act (“DOMA”):

Kagan waded into the DOMA case, amending a brief that offered “responsible procreation” as a reason for DOMA to instead explicitly reject procreation and child wellbeing as a reason for defining marriage as one man and one woman — undermining the law she claims to be defending. We’ve seen this tactic in state litigation before: Attorneys general pretend to defend the marriage law but sabotage the case by explicitly rejecting procreation as a reason for marriage. (See Jerry Brown in California.)

The unstated assumption is that the “procreation” argument against gay marriage is a good one, and that removing it therefore effects sabotage. It isn’t, and it doesn’t. To argue that marriage is premised on procreation debases the institution, and proves too much, and the courts know it. From Goodridge v. Dep’t of Public Health, 798 N.E.2d 941 (Mass. 2003) (footnotes omitted), the Massachusetts decision legalizing gay marriage:

The judge in the Superior Court endorsed the first rationale, holding that “the state’s interest in regulating marriage is based on the traditional concept that marriage’s primary purpose is procreation.” This is incorrect. Our laws of civil marriage do not privilege procreative heterosexual intercourse between married people above every other form of adult intimacy and every other means of creating a family. General Laws c. 207 contains no requirement that the applicants for a marriage license attest to their ability or intention to conceive children by coitus. Fertility is not a condition of marriage, nor is it grounds for divorce. People who have never consummated their marriage, and never plan to, may be and stay married. See Franklin v. Franklin, 154 Mass. 515, 516 (1891) (“The consummation of a marriage by coition is not necessary to its validity”).  People who cannot stir from their deathbed may marry. See G.L. c. 207, § 28A. While it is certainly true that many, perhaps most, married couples have children together (assisted or unassisted), it is the exclusive and permanent commitment of the marriage partners to one another, not the begetting of children, that is the sine qua non of civil marriage.

This isn’t a political or partisan conclusion: it’s an acknowledgment that no definition of marriage, if even slightly romanticized, requires the couple to have any intention of procreating.

Since it’s a laughably ineffective and discredited argument for a restricted theory of marriage, by removing it from the draft brief, Kagan winnowed away ineffective legal arguments, as good lawyers do, and it’s unfair to imply from that act that she was doing anything other than being a good advocate.

Just so, it’s dangerous to read too much into her role as advocate in this case. The Solicitor General defends the cases she is asked to defend, nothing more.

I do, however, expect that Kagan is a safe vote for gay marriage, and not without reason. More on that later.



  1. Just as a contrast to what will surely be a lengthy defense of Kagan – may you could provide us with at least one initial negative you can locate in her selection. And by that I mean a TRUE negative and not a liberally-nuanced negative.

  2. She’s not Pam Karlan. I’m not wild about her either, but she’s not the nightmare situation either side seems to think she is.

  3. they’re going to oppose Obama’s pick no matter who it is. They would oppose Bork right now.

  4. […] this, ACG at Submitted to a Candid World adds: This isn’t a political or partisan conclusion: it’s an acknowledgment that no definition […]

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