Elena Kagan on Families & Children



Overturn DOMA; equal protection for same-sex couples

In United States v. Windsor, the Supreme Court ruled that the Defense of Marriage Act, which defined the term "marriage" under federal law as a "legal union between one man and one woman" deprived same-sex couples who are legally married under state laws of their Fifth Amendment rights to equal protection under federal law.

Situation: Edith Windsor and Thea Spyer were married in Toronto, Canada in 2007. Their marriage was recognized by New York state, where they resided. Upon Spyer's death in 2009, Windsor was forced to pay $363,000 in federal taxes, because their marriage was not recognized by federal law.

OnTheIssues explanation: This ruling led to a series of state legalization of same-sex marriage, as well as federal equality of same-sex rights (but not federal equality of marriage).

Opinions:Majority: Kennedy, Ginsburg, Breyer, Sotomayor, & Kagan; dissent: Roberts, Alito, Thomas & Scalia, on mixed grounds of federalism & traditionalism.

Source: CNN.com on 2012 SCOTUS docket #12-307 , Jun 26, 2013

Grants to religious organizations ok for family services

Kagan called a memorandum that she wrote as a 27-year-old law clerk to Justice Thurgood Marshall "the dumbest thing I ever read." Kagan elaborated, "I indeed believe that my 22-year-old analysis was deeply mistaken. It seems now utterly wrong to me to say that religious organizations generally should be precluded from receiving funds for providing the kinds of services contemplated by the Adolescent Family Life Act. I instead agree with the Court's statement" that the projects authorized by the AFLA-including pregnancy testing, educational services, consumer education, etc. are not themselves "specifically religious activities," and they are not converted into such activities by the fact that they are carried out by organizations with religious affiliations. As that Court recognized, the use of a grant by a particular religious organization [does not of itself] constitute a violation of the Establishment Clause [unless used for a] "specifically religious activity."
Source: Tom Goldstein on SCOTUS Blog, "9750 Words" , May 8, 2010

1st Amendment protects videogame violence as "speech".

Justice Kagan joined the Court's decision on BROWN v. ENTERTAINMENT MERCHANTS on Jun 27, 2011:

A California law imposed $1000 civil fines on persons who sold or rented to minors "violent video games." The video game industry sued to prevent enforcement of the law.


Video games are a form of speech and are subject to protection under the First Amendment because it has proved difficult to distinguish between politics and entertainment. Games communicate ideas through literary devices. A well defined constitutional tradition is that restrictions based on the content of speech are permitted only in only a few areas, such as obscenity, incitement to violence, or uttering fighting words. Depictions of violence are not within this tradition. California has not chosen to restrict those other media, e.g., Saturday morning cartoons, therefore California's law is underinclusive, suggesting that it disfavors a particular speaker or viewpoint.

CONCURRED: ALITO concurs in judgment; joined by ROBERTS

The California law should have been struck down on due process grounds as "vague": It lacked sufficiently narrow definition of "violent video game" so that a retailer would be put on notice. The Court should not have resorted to the First Amendment and should have been far more careful and moved with more deliberation in evaluating a new technology, since the future may find participating in a video game is actually different from watching movie.


The Founders would not have seen any right to speak to a minor other than through his parents, which is what the California law permits.


The California law withstands other First Amendment's strict scrutiny.
Source: Supreme Court case 11-BROWN argued on Nov 2, 2010

Other Justices on Families & Children: Elena Kagan on other issues:
Samuel Alito
Stephen Breyer
Ruth Bader Ginsburg
Elena Kagan
Anthony Kennedy
John Roberts
Sonia Sotomayor
Clarence Thomas

Former Justices:
Antonin Scalia
David Souter
Sandra Day O'Connor
William Rehnquist
John Paul Stevens

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Page last updated: Sep 27, 2016