Sunday, May 3, 2015

Kennedy at the Rubicon on Marriage

          Anthony M. Kennedy was a young and fairly new federal appeals court judge in 1980 when he first showed latent support for gay rights in a judicial opinion. In a decision upholding the Navy’s discharge of three service members for “homosexual acts,” Kennedy deferred to military authorities, but he added a sentence suggesting that outside the military the Constitution might protect “consensual private homosexual conduct.”
          In recalling the decision last week on the eve of the Supreme Court’s hearing in the same-sex marriage cases, the Los Angeles Times’s veteran reporter David Savage wrote that “almost no one foresaw” that Kennedy would become “the Supreme Court’s most important voice on gay rights.” You’ll have to take my word for this, but I took note of Kennedy’s opinion as editor of the Los Angeles Daily Journal in the 1980s while working on a story about another gay military discharge case.
          In Washington a couple of years later, I thought about the case when I confidently described Kennedy as a moderate conservative after his appointment to the court. Eight terms later, I was not surprised when Kennedy wrote for the 6-3 majority in Romer v. Evans (1996) striking down Colorado’s anti-gay rights initiative.
          Inside the courtroom on the final day of the 2002-2003 term, I clenched my fist into a silent cheer when Chief Justice William H. Rehnquist announced that Kennedy had the opinion for the court in the anti-sodomy law case, Lawrence v. Texas (2003). Some gay men in the courtroom were said to have teared up as Kennedy summarized the decision from the bench, in his full-earnest mode. For me, less than four years after having come out myself, there were no tears, only the heart-racing excitement any reporter would experience as witness to an historic event.
          Ten years later, I was fairly confident that the court would strike down the Defense of Marriage Act (DOMA) but uncertain about what it would do with California’s anti-gay initiative Proposition 8. With Kennedy’s opinion in United States v. Windsor (2013) striking down DOMA’s major provision and the Prop 8 case ducked, I began confidently predicting that Kennedy would join and likely lead an eventual majority in favor of marriage rights for same-sex couples.
          To borrow my colleague’s phrase, almost no one foresaw how quickly the marriage issue would return to the court. Certainly, I didn’t. And, it would appear, Kennedy didn’t either. Thus, Kennedy worried out loud in his first comments during the oral argument last week [April 28] in Obergefell v. Hodges about the pace of change on the issue.
          With Lawrence on the books for only “10 years” (actually, almost 12), Kennedy asked whether the court should be changing a definition of marriage that goes back for “millennia.” “There has not really been time,” Kennedy remarked, “for the federal system to engage in this debate, the separate states.”
          Later on, Kennedy also discounted any of the social science that same-sex marriage advocates had cited to show, for example, that children do well when raised by same-sex parents. “It seems to me then that we should not consult at all the social science on this,” he told the plaintiffs’ lawyer, Mary Bonauto, “because it’s too new.”
          Kennedy became much more animated, however, when he confronted the lawyer representing the states, former Michigan solicitor general John Bursch. Kennedy had spoken of the importance of “dignity” in the gay rights context as early as 1986, but Bursch argued that the state’s “entire interest” in marriage was strengthening parent-child bonds and not all “dignitary bestowing” for the spouses.
          “Just in fairness to you,” Kennedy said, “I don’t understand this not dignity-bestowing. I thought that was the whole purpose of marriage. It bestows dignity upon both man and woman in a traditional marriage.”
          “It’s dignity bestowing,” Kennedy continued, “and these parties say they want to have that same ennoblement.” Bursch tried to recover, to no avail. Ending the colloquy, Kennedy confessed he was still “puzzled.
          With Kennedy’s first comment in mind, I hedged my bets in a radio hit that afternoon. Recalling Justice Brennan’s famous “counting to five” rule, I said that lawyers on both sides had some reason to think they had a shot at the critical fifth vote: Kennedy’s.
          Others in the press corps were similarly tentative, but Adam Liptak in The New York Times wrote in his lead that the “tone and substance” of Kennedy’s questions gave marriage supporters “reasons for optimism.” BuzzFeed’s Chris Geidner flatly predicted a pro-marriage ruling.
          Tellingly, Ed Whelan, a former Scalia law clerk and now the Bench Memo blogger for the National Review’s online site, openly despaired. “Having watched Justice Kennedy for 25+ years,” Whelan tweeted, “I have no real hope he’ll let state marriage laws survive.”
          Kennedy is capable of Hamlet-like indecision. He worried aloud to a reporter about “crossing the Rubicon” on the day in 1992 when he joined a five-justice majority to reaffirm the abortion rights decision Roe v. Wade. In the end, however, Kennedy must be true to his own self and his record on the bench. He may have wrestled with the decision, but when the justices met in conference on Wednesday [April 29], the best guess is that he provided the fifth vote for marriage equality and, as the senior justice in the majority, assigned the opinion to himself.


  1. Kennedy will vote (or has already) to uphold the bans. He has nothing on which to hang any other decision. In particular, he does not have:

    1. stare decisis, as he did in Casey
    2. an unusual deviation from tradition, as in Romer and Windsor
    3. a federal law, as in Windsor, NFIB(Obamacare), and Shelby County (Voting Rights Act)
    4. a majority of states approving the practice, as in Lawrence

    Ginsburg and Breyer are also more likely than not to uphold the bans, but their votes are less certain.

  2. For future reference, Kennedy's opinion for the 9th Circuit in 1980 was Beller v. Middendorf, 632 F.2d 788 (9th Cir. 1980).