Gay Rights a Flashpoint in Kagan Confirmation

Even before President Obama officially announced Elena Kagan as his Supreme Court pick, gay-rights advocates were celebrating and conservatives were grumbling. President of the Human Rights Campaign Joe Solomonese applauded the leaked decision, saying, “We are confident that Elena Kagan has a demonstrated understanding and commitment to protecting the liberty and equality of all Americans, including [lesbian, gay, bisexual, and transgender] Americans.” There is one place where Kagan has demonstrated that LGBT commitment most, and that is at Harvard, where she was the first female dean of its esteemed law school. The war in Iraq, which started shortly before her 2003 appointment, would soon lead to massive recruiting efforts by the U.S. military, but Kagan was opposed to military recruitment on campus because of the armed forces’ policy against allowing gays and lesbians to serve their country openly, calling it “a profound wrong—a moral injustice of the first order.” Gay advocates say she tread a careful line at Harvard by not ever actually kicking the military recruiters off campus; conservatives say her actions there broadcast her judicial activism to come.

With key LGBT issues expected to reach the Supreme Court in coming years—gay marriage, “Don’t Ask, Don’t Tell,” and challenges to the new federal hate-crimes laws—the issue is one of real importance, not just bickering about the culture war. At Harvard, Kagan became a star in the LGBT community. During her confirmation hearing to become solicitor general, Dylan Matthews, a Harvard undergrad who self-identifies as queer, predicted a gay-friendly Supreme Court would be coming soon:

“Her most significant work is on the Solomon Amendment, legislation that withholds federal funds from colleges and universities when they ban military recruiters because the military’s Don’t Ask, Don’t Tell policy conflicts with many universities’ antidiscrimination policies,” wrote Matthews in a piece for CampusProgress.org. “As dean, Kagan supported a lawsuit intended to overturn the legislation so military recruiters might be banned from the grounds of schools like Harvard. When a federal appeals court ruled the Pentagon could not withhold funds, she banned the military from Harvard’s campus once again.”

Kagan eventually gave in when the Supreme Court ruled in favor of the recruiters, but was touted in the LGBT community for urging students to protest against Don’t Ask, Don’t Tell and for meeting with LGBT student groups.

The goodwill she initially earned from conservatives on the Harvard Law faculty couldn’t measure up to the disappointment with her Don’t Ask, Don’t Tell stance for some conservative legal commentators, such as Ed Whelan. He says that Kagan had been generous to conservatives while serving as dean, hiring conservative professors and forging good relations with the Federalist Society. But, he writes for the National Review, “Kagan’s exclusion of military recruiters from the Harvard law school campus promises to draw considerable attention precisely because—as Peter Beinart, the liberal former editor of The New Republic, has written—it amounted to ‘a statement of national estrangement,’ of Kagan’s ‘alienating [her]self from the country.’ In her fervent opposition to the Don’t Ask, Don’t Tell law and the Solomon Amendment, Kagan elevated her own ideological commitment on gay rights above what Congress, acting on the advice of military leaders, had determined best served the interests of national security.”

Harvard is not the only area of concern for conservatives looking closely for activism in her LGBT record. Whelan points out that media coverage of Kagan has underscored how during her confirmation hearing to become solicitor general she said she does not believe there is a constitutional right to gay marriage, but that reporters took her words out of context: “The follow-up questions made it clear that she was merely describing the current state of Supreme Court law, not expressing her personal legal view.” The Family Research Council’s Tom McClusky says that Kagan’s record on the federal hate-crimes bill has worried conservatives (the FRC Web site quotes from a 1996 University of Chicago Law Review piece and argues that Kagan “Believes courts should support hate crime laws and that when reviewing regulations of speech, courts could ‘evaluate motive directly, they could remove the lion’s share of the First Amendment’s doctrinal clutter.’”

But as a former solicitor general, Kagan may simply need to recuse herself from many cases involving gay rights. She’s already been behind the Obama administration’s handling of key gay-rights issues, including the Defense of Marriage Act, not just Don’t Ask, Don’t Tell. “Because of her role, Kagan would be forced to recuse herself from deciding these cases if they come before the Supreme Court,” writes Eva Rodriguez of The Washington Post editorial board. “Thurgood Marshall was the last person to rise to the court after having served as solicitor general, and he had to recuse himself from some four dozen cases—although that was at a time when the court heard many more arguments than it does today.”

The Family Research Council’s McClusky adds that while “We just do not know how much her outside advocacy will inform her judicial decisions,” her fiercest critics may come from the left. He points to concerns among liberals that Obama’s choice could in fact shift the court too far to the right, and wonders how that might help conservatives: “It will be interesting to see if we’re about to get a Harriet Miers-type situation,” a reference to the George W. Bush Supreme Court nominee whose name was withdrawn after she faced a flood of criticism from both parties.

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