William Jacobson notes that Elena Kagan has declared: “There is no federal constitutional right to same-sex marriage.” That is, if she was telling the truth when she answered a questionnaire from Sen. John Cornyn (p. 28 at this .pdf link) during her confirmation process to become Solicitor General:
a. 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 samesex marriage?
Answer: There is no federal constitutional right to same-sex marriage.
Prof. Jacobson notes: “Reasonably assuming the four conservative judges share Kagan’s view, there now will be a definite majority on the Court against recognizing a constitutional right to gay marriage.” This is relevant because that case started by David Boies and Ted Olson will be percolating its way through the system towards the Supreme Court at some point.
I pretty firmly believe that Justice Kennedy would also be a vote against putting gay marriage in the Constitution, which I think he would see as a step too far. But you never know for sure. If Kennedy decided to find this right among those encompassed by what Justice Scalia has called the “famed sweet-mystery-of-life passage,” then Kagan would be a fifth vote against him.
If she told the truth.