ELENA KAGAN uttered neither the word "gay" nor "marriage" in her opening statement at the Senate confirmation hearings on her nomination to the Supreme Court, but she addressed the issue nonetheless. No, she didn't say how she will vote when gay marriage comes before the court, as it may soon. What she did say was this:

"The Supreme Court, of course, has the responsibility of ensuring that our government never oversteps its proper bounds or violates the rights of individuals. But the court must also recognize the limits on itself and respect the choices made by the American people."

Ms. Kagan may not have had gay marriage in mind when she made that statement, but it could not be more relevant. She seems to be saying that protecting minority rights is the Supreme Court's job description, but also that a civil rights claim doesn't automatically trump majority preferences. This is something absolutists on both sides of the gay marriage debate don't like to hear, but it has the virtue of being right.