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Elena Kagan on Civil Rights


Oppose don't-ask-don't-tell but defend it as current law

Kagan has said that she opposes the military's "don't ask, don't tell" policy, which bars gays & lesbians from serving openly in the armed forces. But in questioning before the Judiciary Committee earlier this year, Kagan said that, as solicitor general, she had sought "to vigorously defend all statutes, including the statute that embodies the `don't ask, don't tell' policy."

Some activists and legal scholars fear that the same principle might apply to her view of California's ban on same-sex marriage. Kagan's apparent deference to the political process could override her personal opposition to a ban on same-sex marriage, the thinking goes. As Kagan said in her testimony before the Senate Judiciary Committee in June: "I don't think courts are all there is in this government."

Still, most of the country's leading LGBT rights organizations have welcomed Kagan's nomination to the Court, praising her promise of a "fair shake for every American" as an implicit commitment to LGBT equality.

Source: Sal Gentile on, "Same-sex marriage debate looms" , Aug 5, 2010

Defend Defense of Marriage Act, since it is the law

During her solicitor general confirmation, Kagan was asked about the Defense of Marriage Act, under which states don't have to recognize same-sex marriages from other states. She said she would defend the act, "if there is any reasonable basis to do so."

Kagan's biggest vulnerability is her position against "don't ask, don't tell," the ban on gays openly serving in the military, which led to her decision as dean of Harvard Law School to bar military recruiters from the school's career office.

Source: Carol Lee on, "Gay rights" , May 12, 2010

OpEd: Conservatives see Kagan as sure vote for gay rights

Gay rights are likely to play a more central role in the upcoming fight over Elena Kagan than they have for any previous nominee. Already, conservatives are trying to paint Kagan as a guaranteed liberal vote for issues like gay marriage. Yet on the left, the response to Kagan has been split--those who are skeptical of Kagan's support for gay rights issues and those who are glad to have a nominee they believe will side in their favor down the line.

Kagan's biggest vulnerability is her position against "don't ask, don't tell," the ban on gays openly serving in the military, which led to her decision as dean of Harvard Law School to bar military recruiters from the school's career office.

Critics and supporters alike are also focusing on the other clues to her positions. During her solicitor general confirmation hearing, for instance, she asserted that "there is no federal constitutional right to same-sex marriage."

Source: Carol Lee on, "Gay rights" , May 12, 2010

1st Amendment protects church's anti-gay funeral pickets.

Justice Kagan joined the Court's decision on SNYDER v. PHELPS on Mar 2, 2011:

Marine Matthew Snyder was killed in the line of duty in Iraq. On public property about 1000 feet from his funeral service, the Westboro Baptist Church followed its custom of protesting at the funerals of service members with signs condemning both homosexuality and the US for supporting it. Snyder's father has been stricken by a grievous emotional reaction since. He sued the protestors and the church for intentional infliction of emotional distress (IIED).


The Free Speech Clause of the First Amendment can be a defense, including those for IIED, if speech regards a public, rather than private, concern. The protestor's signs here concerned plainly public matters such as the moral conduct of the US and its citizens, the fate of the nation, homosexuality in the military, and scandals involving the Catholic clergy. The protestors can't be said to have used speech on public issues to cloak an attack on the plaintiff. The protestors chose the location to increase publicity, but this does not mean the speech is less protected.


The State is not always powerless to provide protection, but upholding IIED liability on the protestors here would not serve the State's interest in protecting citizens against severe emotional harm. In this case, the protestors complied with police directions, picketed where it was lawful to do so, and could not be seen from the funeral.


The protestors engaged in a personal attack on Snyder's memory through signs implying he was a homosexual, a Catholic, and doomed to hell for these “sins.” The direct nature of this assault on the dead marine and his family were made clear in a subsequent Internet posting directed at Snyder's character and his parents. The First Amendment does not shield these verbal assaults at such an emotionally vulnerable moment.
Source: Supreme Court case 11-SNYDER argued on Oct 6, 2010

Women under-represented as managers enough for gender bias.

Justice Kagan joined the dissent on WAL-MART v. DUKES on Jun 20, 2011:

The plaintiffs were certified as a class by the district court in their suit against Wal-Mart, on behalf of 1.5 million female employees, seeking punitive damages and backpay owing to Wal-Mart's alleged discrimination against them in violation of Title VII of the Civil Rights Act.


The certification of the class was inappropriate. Class certification requires proof that a class of persons have suffered the same injury by a general policy of discrimination. Wal-Mart's corporate policy forbids discrimination, and the plaintiff's only evidence of a general policy of discrimination is a sociologist's analysis asserting that Wal-Mart's corporate culture made it vulnerable to gender bias. Since the expert testified he could not estimate what percent of Wal-Mart employment decisions might be determined by stereotypical thinking, his testimony was not significant proof. That Wal-Mart gave local supervisors discretion over employment matters did not show that a central direction to use that discretion in a discriminatory manner. The claims for backpay were improperly added onto a class provision that allows only equitable relief, not monetary relief.

DISSENTED: GINSBURG concurs in part, dissents in part; joined by BREYER, SOTOMAYOR & KAGAN

I agree this class should not have been certified, but such a class might have proper under Rule 23(b)(3) seeking money damages. The Court should not have ruled on the class at this time, but rather remanded the issue for consideration and decision. The district court found evidence that 70% of hourly employees are female, but only 33% of managers. That, with other evidence, could support a common question, necessary for the resolution of all class members' cases, that corporate culture and lack of formal standards or training for employment decisions may have led to discrimination.
Source: Supreme Court case 11-WALMART argued on Mar 29, 2011

Other Justices on Civil Rights: Elena Kagan on other issues:
Samuel Alito
Stephen Breyer
Ruth Bader Ginsburg
Elena Kagan
Anthony Kennedy
John Roberts
Antonin Scalia
Sonia Sotomayor
Clarence Thomas

Former Justices:
David Souter
Sandra Day O'Connor
William Rehnquist
John Paul Stevens

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Page last updated: Mar 08, 2014