Saturday, July 10, 2010

Same sex marriage in Kagan's confirmation hearings

The confirmation hearings for Supreme Court nominee Elena Kagan provide an excuse for a NY Times OpEd by Jonathan Rauch to speculate on how she might feel about same sex marriage, based on some general principles she admitted to. (Rauch writes that he is himself a spouse in a same sex marriage that is recognized where he works, in Washington DC, but not where he lives, in Virginia.) A ‘Kagan Doctrine’ on Gay Marriage

"Civil rights, she implies, are important, but so is judicial modesty, and a sensible judge balances the two. A sensible judge can say something like, “Same-sex marriage may indeed be a civil right, but not all civil rights demand immediate judicial intervention, and other important interests militate against imposing this one on the whole country right now.”

"Viewed in that light, the argument for upholding California’s gay marriage ban has merit — not because the policy is fair or wise (it isn’t) but because it represents a reasonable judgment that the people of California are entitled to make. Barring gay marriage but providing civil unions is not the balance I would choose, but it is a defensible balance to strike, one that arguably takes “a cautious approach to making such a significant change to the institution of marriage” (as the lawyers defending Proposition 8 write in one of their briefs) while going a long way toward meeting gay couples’ needs."

No comments: