As the Supreme Court’s unpredictable swing vote, Justice Anthony Kennedy often finds himself the subject of scrutiny before big, controversial Supreme Court cases. But next week, when he hears arguments in two cases with the potential to transform the way gays and lesbians are treated in the country, Kennedy watchers have two landmark opinions written by the justice to mine for clues as to how he will rule.
Starting Tuesday, judges will hear oral arguments over whether California’s voter-approved ban on gay marriage, Proposition 8, violates the constitutional rights of gay people in the state; and over whether the 1996 Defense of Marriage Act, which states that only marriages between people of the opposite sex are federally valid, is legal.
The former, called Hollingsworth v. Perry, could be especially significant as the justices, in theory, could either declare all state gay marriage bans unconstitutional—or say that gay couples have no constitutional claim to marriage at all.
Kennedy, a 76-year-old Sacramento native and Ronald Reagan appointee, most often votes with his four conservative colleagues. But the devout Catholic has broken with that pattern to side with the more liberal wing of the court in some key cases, such as when he affirmed Roe v. Wade’s holding that women have a right to abortions in 1992, and when he ruled in 2005 that states may not sentence criminals to death if they committed their crimes as juveniles.
Included in Kennedy’s swings toward the liberal wing of the court are two of the most important Supreme Court decisions involving, and ultimately affirming, gay rights, authored by Kennedy himself: Lawrence v. Texas (2003) and Romer v. Evans (1996). Advocates for gay marriage and legal experts think Kennedy’s decision to break with his conservative colleagues and expand rights for gay people in these two decisions means he will be reluctant to rule against same-sex marriage this time around.
“I think he’s very aware" of his legacy on gay rights, said Geoffrey Stone, a constitutional law professor at the University of Chicago. “My guess is he’s proud of it and won’t do anything to tarnish it.”
But Stone, like many court watchers, doubts Kennedy would go so far as to strike down all 41 state laws that ban gay marriage. Kennedy could strike down California’s Proposition 8 on much narrower grounds, in a way that would affect only California or, at most, a handful of states. That would still hand gay marriage proponents a victory, encouraging them to continue trying to pass gay marriage laws state by state, without sparking charges of judicial overreach.
“I don’t think Kennedy is going to come out in a kind of Loving v. Virginia [decision] saying there’s a right to gay marriage,” said Northern Illinois University Law Professor Artemus Ward, referring to the landmark case striking down state bans on interracial marriage. “That would be a huge, bold decision that no one expects.”
Kennedy’s reputation as a judicial supporter of gay rights began when he wrote the opinion for Romer v. Evans striking down a Colorado constitutional amendment that barred local governments from passing laws that prevented discriminating against gay people. According to one of Kennedy’s former clerks quoted in a paper by Ward, Kennedy thought the law was an “outrage” because it appeared to him to be motivated purely by hatred for a group of people.
In his opinion, Kennedy wrote that the amendment “seems inexplicable by anything but animus toward the class it affects; it lacks a rational relationship to legitimate state interests.” He wrote that the law singled out a group of people simply to deny them rights and make them unequal to others.
In Lawrence v. Texas, which struck down state sodomy statutes, Kennedy wrote that laws punishing people for engaging in anal sex “seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals.” And he noted that the constitution guaranteed gay people the right to have sexual relationships in private while still retaining “their dignity as free persons.”
In a scathing dissent, Justice Antonin Scalia warned that the logic behind Kennedy’s decision opened the door to striking down laws that prevent same-sex marriage, since Kennedy effectively ruled that moral disapproval is not by itself a legitimate reason for the government to outlaw behavior.
Both of these decisions suggest that Kennedy is hostile to laws that single out gay people as a group based on a moral dislike of them. But opponents of gay marriage point out that gay marriage bans like Proposition 8 do not explicitly mention or single out gay people; instead they define marriage as occurring only for opposite sex couples.
“There’s nothing in those decisions that compels Kennedy to take" the step of striking down gay marriage bans, John Eastman, a law professor at Chapman University and chairman for the anti-gay marriage group the National Organization for Marriage, said.
In past decisions, Kennedy has also placed importance on public opinion and international law, which sets him apart from his colleagues. Kennedy carefully cited public opinion polls and state laws in his opinion declaring the death penalty for juveniles unconstitutional, saying that most Americans and states disapproved of the practice. And Kennedy cited other countries' decisions to repeal sodomy laws in his Lawrence opinion.
Eastman finds this tendency of Kennedy's hopeful for his cause, as a majority of states have adopted gay marriage bans. And fewer than a dozen countries have recognized the right to gay marriage.
But public opinion is changing rapidly on the issue, with recent polls showing a majority of Americans for the first time supporting gay marriage. Younger people overwhelmingly support same-sex marriage. Kennedy, more than any other justice, may be swayed by this emerging shift.
“It’s clear what the trend line is with regard to this issue,” said Kent Greenfield, a law professor at Boston College and former clerk for Justice David Souter. “He probably doesn’t want to be out too far in front, but at the same time he doesn’t want to be the person who writes the equivalent of Dred Scott.”