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Could Gay Issues Block Court Nod for Kagan


Conservatives preparing for the possibility that Solicitor General Elena Kagan could be President Obama's selection for the U.S. Supreme Court are zeroing in on her participation in a gay rights lawsuit when she was dean of Harvard Law School, The Wall Street Journal reports.

In 2005, Kagan was one of 40 Harvard law professors who signed a friend-of-the-court brief urging the Supreme Court to uphold an earlier ruling allowing law schools to limit military recruiters access to campus. Schools had historically barred recruiters in response to the military's discriminatory "don't ask, don't tell" policy, which bars openly gay people from military service.

Although Kagan did not write the brief, she did send an e-mail to faculty and students calling the military policy "a profound wrong -- a moral injustice of the first order." The Supreme Court ultimately reversed the lower court ruling.

Kagan's signature on the brief first became an during her confirmation hearing for solicitor general. "Ms. Kagan's extreme rhetoric makes it highly like that she also favors same-sex marriage, both as a matter of policy and as a supposed federal constitutional right," officials from the American Family Association, Focus on the Family,, and other far-right groups warned in a letter.

That letter may have prompted Sen. John Cornyn of Texas to send a written question to Kagan as follow-up to the confirmation hearing, asking if she believes the Constitution provides for gay marriage.

"There is no federal constitutional right to same-sex marriage," she responded, adding that she didn't believe she'd ever expressed an opinion on whether there should be such a right.

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