U.S. Supreme Court

Kagan Critics Focus On Her Gay-Rights Stance in Military Recruiting Suit


Solicitor General Elena Kagan, said to be one of three people under consideration to replace Justice John Paul Stevens, doesn’t have the same written track record as the two appeals judges on the rumored short list, Merrick Garland and Diane Wood.

But conservatives have found an issue—Kagan’s gay-rights stance in a suit seeking to keep military recruiters out of law schools—and are planning an attack if she is nominated, the Wall Street Journal (sub. req.) reports.

Focus on the Family and other conservative groups opposed Kagan’s confirmation for solicitor general last year, the story says. They argued that Kagan’s military-recruiting views make it “highly likely” that she also supports same-sex marriage, “both as a matter of policy and as a supposed federal constitutional right.”

The controversy stems from a Supreme Court amicus brief that Kagan signed in 2005 arguing that federal law allowed law schools to limit access to military recruiters, just as they did any employer refusing to sign pledges saying they wouldn’t discriminate against gays and lesbians.

The Solomon Amendment had cut off federal funding for schools unless they gave military recruiters access that was “equal in quality and scope” to that of other employers.

A federal appeals court had struck down the law as an infringement on the schools’ First Amendment rights. The amicus brief signed by Kagan didn’t make the First Amendment argument, the story says. Rather, it said schools were complying with the law by treating military recruiters the same as other employers that didn’t sign nondiscrimination pledges.

The U.S. Supreme Court upheld the law and rejected the theory advanced by the amici.

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