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Big Footsteps for Elena Kagan

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The U.S. Senate begins its consideration of the nomination of Solicitor General Elena Kagan to the Supreme Court on June 28th, just two days after the seventh anniversary of the high court's decision in Lawrence v. Texas. The juxtaposition of these events points to critical issues that senators and the nation need to consider about the legacy of the position Kagan has been nominated to fill and the responsibilities of all our country's top justices.

In Lawrence v. Texas, the Supreme Court held unconstitutional the laws of the 13 states that in 2003 still criminalized certain forms of private, consensual, adult sexual intimacy. The majority opinion in the case explained that, in guaranteeing a right of "liberty," the Fifth and Fourteenth Amendments safeguard Americans against government efforts to control adults' personal relationships or the intimate conduct that may be part of such bonds. The opinion concluded that the Court had erred 17 years earlier when it rejected that conclusion in Bowers v. Hardwick. What should have been controlling then as well as now, the opinion explained, was the analysis Justice John Paul Stevens provided in his dissent in Bowers. Pointing to the Court's prior invalidation of laws prohibiting interracial marriage, Justice Stevens had explained in that dissent that "the fact that a governing majority ... has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice." He also concluded that the intimate choices of both married and unmarried persons are a protected form of liberty even when not intended to produce offspring.

Solicitor General Kagan has been nominated to fill the seat on the Court held by Justice Stevens until his recent retirement. He in turn had filled the seat of another champion of individual rights, Justice William O. Douglas, who authored the Court's decision striking down laws banning the use of contraceptives. And, before Douglas, that seat was held by one of the most brilliant defenders of constitutional rights among the court's pantheon, Justice Louis Brandeis.

The nation deserves someone equally devoted to the protection of personal freedoms as those whose position on the Court she would assume. We need someone who is fully committed to the protection of liberty, privacy, equality, and free speech -- a justice who understands, as did Stevens, Douglas, and Brandeis, that it is the judiciary's obligation to preserve the Constitution's bulwark against the overstepping of majority rule rather than to protect those already in power.

Justice Douglas wrote that the nomination of Louis Brandeis was highly contested and that Brandeis was assailed as "a militant crusader for social justice." Yet Brandeis was confirmed by more than a two-to-one margin. Kagan's record shows her to be a moderate, but even if she could be described in those terms, since when did standing up for justice become a disqualifier for the bench?

Lawrence v. Texas is a landmark decision for many reasons. It ended the branding of gay people as criminals by enforcing the Constitution's commitment to "liberty and justice for all" that caps off the Pledge of Allegiance. It freed our lesbian and gay youth from growing up any longer under laws that, in the words of the majority opinion, "demean their existence" and seek to "control their destiny." It recognized that the Constitution's protections of "personal dignity and autonomy" are "central to the liberty protected by the Fourteenth Amendment" and extend as much to lesbians and gay men as to heterosexuals. It recognized that love, sexuality, and family play the same role in gay people's lives as for everyone else.

A commitment to these constitutional principles should be a prerequisite for a place on our nation's highest court. Those who claim, as did Justice Scalia in his intemperate dissent in Lawrence, that the majority in the case departed from the judiciary's "role of assuring, as neutral observer, that the democratic rules of engagement are observed" must have failed their civics classes. The Constitution entrusts the courts not to be neutral observers, but rather to be protectors of the rights our charter protects against even those infringements that have been adopted by the "democratic rules of engagement."

Justice Scalia bemoaned in his dissent that the judges who formed the Lawrence majority were taking sides in a "culture war." If there has been a "war," it's one where gay people have long been the targets, whose love was made a crime, who have been murdered and assaulted for who they are, who have had state constitutions amended to deny them equal rights, and who have had their sexual orientation used to deprive them of their livelihoods, harass them at school, and take away their children. If it's to be seen as a war, the country is entitled to Supreme Court justices who will support the constitutional shields that shelter those under attack.

And for those who would question Supreme Court nominees about how the Constitution can provide protections that the framers may not specifically have envisioned, they too need to return to a civics class. At a minimum, they need to read the final passage of the majority opinion in Lawrence: "Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom."

As the confirmation hearings begin, it will be important to see if Solicitor General Kagan agrees. We need to know if she will commit to abide by Lawrence's precedent. And, ultimately, the Senate and the American people need to feel secure that she will protect our Constitution, just like Stevens, Douglas, and Brandeis, in whose footsteps she is being asked to follow.

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