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Kagan Declines to Comment on State Marriage Laws

Supreme Court nominee Elena Kagan declined today to comment on whether states had the right to determine their own marriage laws, citing the likelihood a case related to that issue would go before the Court in the near future. Her excuse was a veiled reference to the challenge to California’s gay marriage ban currently under adjudication in a federal court.

“I want to be extremely careful about this question,” she said. “I think I’ll leave it there.”

The California case revolves around a challenge to Proposition 8, a law passed by voters in 2008 that banned same-sex marriage.

Sen. Chuck Grassley (R-Iowa) had asked about Kagan’s opinion on the issue during senators’ second round of questions in today’s session of her confirmation hearings. He followed the question up by asked her about Baker v. Nelson, a 1972 case in which the Court ruled that a Minnesota law that limited marriage rights to opposite-sex couples was constitutional.

Kagan said she believed the case deserved some precedential weight, but not the same weight as a normal case. In Baker v. Nelson, the Court dismissed the case without hearing arguments because the justices believed the case did not revolve around a substantial federal issue. Kagan has generally gone further in her endorsement of existing Court opinions, usually referring to them as “settled law.”

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