Constitutional rights

So our predominantly Protestant Christian country will have a Supreme Court made up of six Catholics and three Jews. Many are also wondering if Elena Kagan is progressive enough to be a bit of a counterweight to Roberts/Alito/Scalia. At least there is a bit more gender balance.

Though she doesn't have a judicial paper trail, all of her writings are now being carefully parsed to see how she might rule on hot-button issues. Gays are, of course, wondering if Obama dissed us again. Evidence for that comes from only a year ago when she was confirmed for the job of Solicitor General.

Question: 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.

Ouch!

One way of parsing that is that the gay marriage cases coming from Calif. and Mass. are doomed. We'll have to get gay marriage through the ballot box and legislative action.

Another is to say that when the question was posed a year ago, that was true. But that has no bearing on whether it will stay true. Is she one (as the GOP hopes) who will only uphold rights specifically spelled out in the Constitution, or is she one who sees the meanings in the Constitution grow as our understanding grows? Signs point to the latter.

And another is that she had to say it to be confirmed. But she did the bob-and-weave thing on many other issues, but not this one.

Yet another view says that marriage is not mentioned in the Constitution, yet it is seen as a fundamental right and the ban on marriage between the races was found to be unconstitutional more than 40 years ago.