Elena Kagan

Never before in the history of Supreme Court confirmation hearings have gay issues played such a prominent role. After quizzing Elena Kagan on Tuesday about the extent of her opposition to the “Don’t Ask, Don’t Tell,” Republicans on the Senate Judiciary Committee came back Wednesday and grilled her again on that matter and on the federal Defense of Marriage Act.

And the questions elicited some interesting answers—not all of which LGBT people will be happy with. She assured the Senate Judiciary Committee that she has “vigorously defended” “Don’t Ask, Don’t Tell” as Solicitor General and that the statute is constitutional. She suggested there has to be some flexibility for people with religious beliefs to obtain exemptions from certain state laws.

And she hinted strongly that a 1972 gay marriage case that the Supreme Court dismissed might have only limited precedential value should the issue come before the court again.

She hedged or declined to answer other questions. She would not say, for instance, whether the Supreme Court has jurisdiction over state marriage laws.

Kagan did say, however, that she and others in the Obama administration “talked a good deal…amongst ourselves and with” the Department of Defense as to whether to appeal a 9th Circuit U.S. Court of Appeals case the government lost on DADT.

Senator Jeff Sessions (R-Ala.), the ranking minority member on the committee, asked her about that because he and others saw it as a reluctance to defend the federal law excluding gays from the military.

But Kagan denied that, saying she and the administration “vigorously” defended the law and saw postponing appeal as the best way to defend the law.

The case in question is Margaret Witt v. Air Force, in which a highly decorated military nurse was discharged under the policy, apparently after a third party told military officials she was gay. In 2008, Witt, represented by the ACLU, won a preliminary court victory against DADT, when the 9th Circuit ruled she had a right to a trial. Last year, Kagan recommended the federal government not appeal that preliminary ruling to the Supreme Court but wait instead for the trial and its appeal to be completed.

Kagan said the administration made the decision in order to build a factual record that would demonstrate to the Supreme Court the burden it would place on the military to give each person discharged under DADT a trial.

“The government would have to show in each particular case,” said Kagan, “that a particular separation caused the military harm, rather than view it in general across the statute.” Such individual inquiries, she said, “would disrupt military operations.”

The response seemed to take the wind out of Sessions, who has led the charge against Kagan. He said he’d take another look at the decision, then complained that the decision was still “in harmony with the ACLU.”

Aubrey Sarvis, head of the Servicemembers Legal Defense Network (SLDN) said, “we simply do not agree with the Solicitor General on how she and her legal team approached and argued the Witt case.”

“SLDN continues to be at odds with that office, as well as the Department of Defense, on Witt. Indeed, the standard articulated by the Ninth Circuit in Witt should be the very standard that DOD uses in all DADT cases in every circuit.”

Sessions and others also probed Kagan again about what actions she took to prevent the military from recruiting at Harvard Law School, while she was dean there from 2003 to 2009. But they didn’t extract much.

Senator Orrin Hatch (R-Utah) questioned whether Kagan really provided equal access to military recruiters, as the Solomon Amendment requires. The Solomon Amendment, passed in 1996 and upheld by the Supreme Court in 2006, prohibited federal funds to universities which barred military recruiters.

Kagan said she believed the access Harvard Law provided was “an equally effective substitute” for the type of access enjoyed by employers. Other employers were required to sign a statement saying they did not discriminate based on sexual orientation and other characteristics, including based on military service.

Senator John Cornyn accused Kagan of trying to “stigmatize” service members with her handling of the DADT-Solomon conflict.

“It certainly wasn’t to stigmatize the military,” said Kagan, emphatically. She said she always tried to honor the military and demonstrate how important they are to the country. She also noted several times during the hearing that the number of attorneys recruited by the military from Harvard went up during the year Sessions and the other senators were questioning.

“I heard you say that,” said Cornyn, “but if the policy had no impact on recruiting, what possible purpose could it serve other than to stigmatize the military –provided them separate but equal” access.

Senator Charles Grassley questioned Kagan about gay marriage.

“Do you believe that marriage is a question reserved for the states to decide?” he asked.

It was the same question he posed to Sonia Sotomayor during her confirmation hearing last year. Sotomayor declined to answer the question but, when pressed about a gay marriage appeal—Baker v. Nelson—dismissed by the Supreme Court in 1972 and asked whether it amounted to precedent, Sotomayor said, “If it is the court’s precedent…I will apply that precedent to the facts of any new situation that implicates it.”

Kagan, too, declined to answer the first question, but she got pulled into Grassley’s questions about whether Baker amounts to precedent.

In Baker, a gay couple sought a marriage license in Minnesota and, when denied one, sued in state court. The couple lost in the Minnesota Supreme Court and then appealed to the Supreme Court. The Supreme Court did not hear arguments or issue a decision in Baker v. Nelson, but it did dismiss the appeal—an action that has more significance than simply refusing to hear the appeal. In dismissing the appeal, the high court explained it was doing so because there was no “substantial federal question” presented by the case. There is disagreement within legal circles as to whether that “summary dismissal” means anything today.

Kagan said she thinks the dismissal has “some precedential weight but not the weight of a normal decision” which has been fully briefed and argued before the high court.

“What weight would you give Baker v. Nelson?” asked Grassley.

Kagan said she would want to hear arguments, read briefs, and talked to her colleagues before making a decision on that.

“I’m disappointed,” said Grassley. He said he had hoped she would say Baker was “settled law” as to whether the Supreme Court could weigh in on state marriage laws.

Grassley also asked Kagan whether she played any role the Department of Justice “abandoning its argument,” in its cases defending the Defense of Marriage Act (DOMA), that the law was justified by the need to protect “traditional marriage” and to see that children are raised “by both parents.”

Kagan said she has not been a decision-maker on the DOMA cases because they are all still in district court and the Solicitor General’s office gets involved at the appellate level. However, she acknowledged participating in “some discussions” about the cases, though she added that she was not at liberty to reveal those discussions.

Senator Jon Kyl (R-Ariz.) challenged Kagan over her remarks about gay marriage at last year’s confirmation hearing as Solicitor General. He noted that, in response to a question, Kagan had said, “There is no federal constitutional right to same-sex marriage.”

“To me, that means the constitution cannot be properly read to include such a right,” said Kyl. “Is that what you meant to say.” Some conservative opponents of Kagan’s nomination have expressed concern that she parsed her words very carefully to last year and that, in that context, may have been saying only that, as Solicitor General, she knew she had a duty to defend the DOMA. Kagan fed that concern with her initial response, saying that she made the statement in response to a question about whether she could, as Solicitor General, defend the constitutionality of DOMA.

“Are you qualifying that now?” asked Kyl.

“I understood the state of the law and accepted the state of the law,” said Kagan. When Kyl pressed her further, she said she didn’t think it appropriate to respond, given the likelihood of a case on DOMA coming before the court.

Democratic senators generally steered away from gay-related discussions, but Senator Dianne Feinstein (D-Calif.) asked Kagan a question concerning the clash of religious beliefs and the constitution’s prohibition on promoting religion—a clash that often comes up with people seeking to circumvent state laws prohibiting discrimination based on sexual orientation.

Feinstein asked Kagan what her approach would be in interpreting the so-called Establishment Clause and the First Amendment guarantee of free exercise of religion.

Kagan said the court needs some flexibility—or “play in the joints”—to provide an exemption to a state law when it imposes “some substantial burden” on a person’s religious beliefs.

“There needs to be some play in the joints,” said Kagan, “to prevent a state from not being able to do anything.”

The response seemed to be an effort to walk a political tightrope, perhaps because of a memorandum she wrote as associate counsel in the Clinton White House disagreeing with a California Supreme Court decision that a landlord could not discriminate against an unmarried couple based on the landlord’s religious belief against co-habitation before marriage. The California court said the landlord had the option of getting out of the rental business, rather than compromise her religious views. Kagan called that “quite outrageous” and worried that “this kind of reasoning could strip” the Religious Freedom Restoration Act (RFRA) “of any real meaning.”

Lambda Legal Defense and Education Fund told Judiciary Chairman Patrick Leahy (D-Vt.) that the issue is “of great importance” to the LGBT community “that any individual who would be appointed to the Supreme Court be willing to follow the precedent” set forth in the Supreme Court’s determination—which was that the RFRA was unconstitutional.

Lambda had no comment on Wednesday about Kagan’s answer, saying they were taking a close look at the transcripts of the hearing before formulating their opinion.

The confirmation hearing continues Thursday and Friday with witnesses testifying for and against Kagan’s nomination.