Supreme Court nominee Elena Kagan
declined Wednesday to express her views on the high court's role in
deciding gay marriage.
In her third day testifying before
senators, Kagan was asked to comment on whether states had the right
to define marriage by Senator Chuck Grassley, a gay marriage foe.
The Iowa Republican said he was only
asking because “it's coming down the road.” A reference to three
gay marriage lawsuits currently wending their way to the Supreme
Court. A ruling is expected any day now in a California case that
questions the constitutionality of the state's gay marriage ban,
Proposition 8, approved by voters in 2008. The other two cases have
been filed in Massachusetts and are just getting underway. In both
cases, plaintiffs – gay couples married in the state – claim the
Defense of Marriage Act (DOMA), the 1996 law that defines marriage as
a heterosexual union for federal agencies, violates their
constitutional rights. All three cases are expected to reach the
Grassley continued, asking Kagan if she
agreed that Baker v. Nelson, a 1972 case appealed to, but not
heard by, the Supreme Court in which the Minnesota Supreme Court
upheld the constitutionality of a law that limits marriage to a
heterosexual union, settled the issue.
“Do you agree that the court's
decision in Baker v. Nelson, holding that federal courts lack
jurisdiction to hear challenges to state marriage laws was correct?”
“My best understanding is that that
decision has some precedential weight, but not the weight of a
'normal' decision,” Kagan answerer.
The high court refused to hear Baker
v. Nelson because it lacked a “substantial federal question.”
Grassley, who supports putting a
constitutional amendment banning gay marriage in the Iowa
Constitution, expressed disappointment that Kagan did not say the
issue was settled.