- The Washington Times - Tuesday, June 8, 2010

Supreme Court nominee Elena Kagan has a dubious history when it comes to forcing states to accept marriages that contradict their own laws. As senators prepare for her confirmation hearings, one fundamental question that needs to be asked is: Would Ms. Kagan as a high court justice try to resurrect the same discredited legal theory she embraced in 1988 as a law clerk for Supreme Court Justice Thurgood Marshall?

The subject has more than theoretical importance. Left-wing advocates for homosexual “marriage” often cite a clause from Article IV of the U.S. Constitution - “Full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state” - to argue that a same-sex union performed in Massachusetts must automatically be recognized, under law, in Mississippi or Utah or any other state where such a thing seems anathema.

At an Oct. 24, 2008, forum at Harvard Law School moderated by then-Dean Kagan, one questioner specifically asked if the Full Faith and Credit Clause could be read that way. Although liberal Harvard Law demigod Laurence Tribe is an advocate for same-sex “marriage,” he immediately rejected the notion. “I do not think the Full Faith and Credit Clause makes marriage exportable,” Mr. Tribe said. “There is a public-policy exception in the Full Faith and Credit Clause. … Same-sex marriage in Connecticut or Massachusetts or California is not going to have to be recognized in other states.”

Without mentioning it by name, Mr. Tribe was referring to the well-established 1939 case of Pacific Employers Insurance v. Industrial Accident, which ruled that “the Full Faith and Credit Clause does not require one state to substitute for its own statute, applicable to persons and events within it, the conflicting statute of another state.”

Despite this precedent, on July 12, 1988 - 20 years ago, but also half a century after the Pacific Employers case - Ms. Kagan described to Justice Marshall a petition for high court review in which a New York prisoner serving a life sentence tried to force New York to recognize a “proxy marriage” into which he entered, via his attorney, in Kansas, even though New York law clearly forbade it. Ms. Kagan’s memo explained that the prisoner staked his claim specifically on the Full Faith and Credit Clause. “I think the [petitioner’s] position is at least arguably correct,” wrote Ms. Kagan.

Ms. Kagan’s advocacy for legal privileges for homosexuals stands out because it comes in the midst of a career of avoiding controversy like the plague. In 1988, she was ready to advise Justice Marshall to ignore 49 years of precedent for a prisoner’s marriage. Senators would be derelict if they do not ask if she would now ignore 71 years of precedent in order to spread same-sex “marriage” to states that do not want it.