Of course Justice Kennedy will vote for equal marriage
So the United States Supreme Court has granted certiorari in from cases on state bans on the marriage of gay and lesbian couples: Obergefell v Hodges (from Ohio), Tanco v Haslam (Tennessee), DeBoer v Snyder (Michigan), and Bourke v Beshear (Kentucky). These are appeals of the opinion of Judge Sutton in the Sixth Circuit, who found state bans to be constitutional in November, while the Fourth, Seventh and Tenth Circuit Courts had previously ruled against state bans.
There will be two questions before the Supreme Court:
- Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?
- Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?
I fully expect them to answer both questions in the affirmative, reversing the judgment of Judge Sutton, recognising a constitutional guarantee of equal civil marriage in all fifty states.
Speculation has already focused on Anthony Kennedy. They are right to do so but not as a swing vote who could go yea or nay on either side. Most analysis factors in the likely breakdown of the court as four liberal justices likely to strike down states bans (Ginsburg, Breyer, Sotomayor and Kagan) and four conservative justices likely to uphold them (Roberts CJ, Scalia, Thomas and Alito), with Anthony Kennedy as the swing vote. To my mind, this mischaracterises the record of Kennedy on this topic, and the role he is likely to play when it comes to the opinion of the court (simplistic as any categorization of justices is, even as I divide them here).
The US Supreme Court has issued three full opinions which extended constitutional protections to gay people against discrimination by government: Romer v Evans (1996), striking down an amendment to the Colorado constitution denying protected status to homosexual or bisexual people; Lawrence v Texas (2003), striking down anti-sodomy laws in Texas, and consequently in 13 other states; and US v Windsor (2013), striking down Section 3 of the Defense of Marriage Act, which recognized only marriage between a man and a woman for federal purposes. The author of all three opinions was Anthony Kennedy. None of these were equivocal or half-hearted. What makes anyone think he’ll go thus far and no further?
Kennedy is certainly a member of the conservative majority on the court. Like the four other conservatives, he was nominated to the court by a Republican president, while the four liberals were nominated by Democratic presidents. In many recent high-profile cases, Kennedy voted with the conservative members in 5–4 splits, to the chagrin of many progressive commentators: Lily Ledbetter v Goodyear Tire Co. (2007), denying an action for gender pay discrimination to someone who did not know of the discrimination for most of the period in question; Gonzales v Carhart (2007), allowing both state and federal restrictions on particular abortion procedures; DC v Heller (2008), guaranteeing the individual right to firearm possession for self-defence; Citizens United v Federal Election Commission (2010), striking down regulations against independent expenditures by corporations during election cycles; Greece v Galloway (2014), town meetings may open with a prayer; McCutcheon v Federal Election Commission (2014), striking down aggregate contribution limits to campaign finance; Burwell v Hobby Lobby (2014), allowing employers with religious objections to be exempt from covering contraception in health insurance.
In 2012, despite much speculation that the fate of the Affordable Care Act would depend on the Kennedy’s vote, it was through the vote of Chief Justice Roberts that it the main provisions of the Act survived challenge. With this record, it is not surprising that a superficial analysis would consider Kennedy as the swing vote on such a hot button issue as extending constitutional protection of marriage to gay and lesbian couples.
The case of the states
Aside from general court alignment, those defending state bans cite specific sections of some of Kennedy’s recent judgments. They would read his opinion in US v Windsor as a defence of federal state definitions of marriage. There certainly are extensive sections in his opinion in Windsor which emphasise the traditional role of the states in defining marriage,
The significance of state responsibilities for the definition and regulation of marriage dates to the Nation’s beginning … for “when the Constitution was adopted the common understanding was that the domestic relations of husband and wife and parent and child were matters reserved to the States.” … The State’s power in defining the marital relation is of central relevance in this case.
They would also point to his opinion last year in Schuette v Coalition to Defend Affirmative Action, in which he upheld an amendment to the Michigan constitution banning preferential treatment in favour of ethnic minorities in state universities,
Were the Court to rule that the question addressed by Michigan voters is too sensitive or complex to be within the grasp of the electorate; or that the policies at issue remain too delicate to be resolved save by university officials or faculties, acting at some remove from immediate public scrutiny and control; or that these matters are so arcane that the electorate’s power must be limited because the people cannot prudently exercise that power even after a full debate, that holding would be an unprecedented restriction on the exercise of a fundamental right held not just by one person but by all in common. … It is demeaning to the democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on decent and rational grounds. … Freedom embraces the right, indeed the duty, to engage in a rational, civic discourse in order to determine how best to form a consensus to shape the destiny of the Nation and its people.
Here Kennedy found that the question of treatment of different races should not be removed from the voters, despite its historical sensitivity. Might the same not be said of the resolution of the question of discrimination against LGBT people?
Liberty and Dignity
However, a range of extracts from opinions from Kennedy shows the role he believes the states hold and the limits to their actions when questions of human dignity and personal liberty are engaged.
In Roper v Simmons (2005), in which he wrote the opinion prohibiting the execution by the states of children, he defended the consideration he gave to international standards, placing the American commitments to rights in a global context, something that would surely have a resonance to a case on marriage of gay and lesbian couples,
Over time, from one generation to the next, the Constitution has come to earn the high respect and even, as Madison dared to hope, the veneration of the American people. The document sets forth, and rests upon, innovative principles original to the American experience, such as federalism; a proven balance in political mechanisms through separation of powers; specific guarantees for the accused in criminal cases; and broad provisions to secure individual freedom and preserve human dignity. These doctrines and guarantees are central to the American experience and remain essential to our present-day self-definition and national identity. Not the least of the reasons we honor the Constitution, then, is because we know it to be our own. It does not lessen our fidelity to the Constitution or our pride in its origins to acknowledge that the express affirmation of certain fundamental rights by other nations and peoples simply underscores the centrality of those same rights within our own heritage of freedom.
In fact, Kennedy has been in the majority of quite a few cases that set limits of the application of the death penalty, and as much if not more than his opinions on gay rights, these stand as a testament to his personal commitment to human dignity. In Kennedy v Louisiana (2008), he wrote the opinion of the court striking down a law allowing for the death penalty in a case other than murder, with phraseology usually specific to the Eighth Amendment, but of wider applicability, “Evolving standards of decency must embrace and express respect for the dignity of the person”. Incidentally, this judgment was criticised by Sen. Barack Obama.
Last year, in Hall v Florida, another death penalty case, he again wrote the majority opinion, this time striking down a law allowing the execution of those who had reached a minimum IQ standard on some put not all tests. His concluding remarks illustrate his view of the limit of the role of the states in questions of constitutional rights,
Florida’s law contravenes our Nation’s commitment to dignity and its duty to teach human decency as the mark of a civilized world. The States are laboratories for experimentation, but those experiments may not deny the basic dignity the Constitution protects.
As to the proposal that contentious social questions should be decided as political matters rather than through the courts, which Kennedy referred to in the section from Schuette mentioned above, elsewhere in the same opinion, he wrote,
The freedom secured by the Constitution consists, in one of its essential dimensions, of the right of the individual not to be injured by the unlawful exercise of governmental power. The mandate for segregated schools; a wrongful invasion of the home; or punishing a protester whose views offend others; and scores of other examples teach that individual liberty has constitutional protection, and that liberty’s full extent and meaning may remain yet to be discovered and affirmed.
Kennedy is more likely to view marriage as a question of individual liberty, in distinction from a question on how best to allocate college admissions.
In Board of Trustees v Garrett (2000), though a case where he voted 5–4 with the conservative justices, he showed an insight into about how discrimination can arise in society,
Prejudice, we are beginning to understand, rises not from malice or hostile animus alone. It may result as well from insensitivity caused by simple want of careful, rational reflection or from some instinctive mechanism to guard against people who appear to be different in some respects from ourselves.
Kennedy’s three gay rights opinions
Let’s look more closely at those three prominent cases in which he wrote opinions specifically protecting gay people from unconstitutional discrimination.
In Romer v Evans (1996), Kennedy struck down a vote in Colorado which forbid any city in the state from extending specific protections to homosexual or bisexual people (Amendment 2). He found that there was a denial of equal protection, and that the Amendment was born out of animosity:
A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense. … Amendment 2, in making a general announcement that gays and lesbians shall not have any particular protections from the law, inflicts on them immediate, continuing, and real injuries that outrun and belie any legitimate justifications that may be claimed for it. … We must conclude that Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else. This Colorado cannot do. A State cannot so deem a class of persons a stranger to its laws.
Then in Lawrence v Texas (2003), Kennedy overturned the Court’s ruling in Bowers v Hardwick (1986) struck down the sodomy laws in Texas, and consequently in 13 other states. Rather than base his finding on the unenumerated right of privacy, he relied on the liberty clause of the Fifth and Fourteenth Amendments. In several sections, he showed a true understanding and appreciation for the importance of an intimate sexual relationship, and the stigma caused by criminalisation
Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. …
When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice. …
For him, it was unimportant that this was not a heavily enforced law, recognising the stigma that can arise merely from attachment of a criminal status:
Equality of treatment and the due process right to demand respect for conduct protected by the substantive guarantee of liberty are linked in important respects, and a decision on the latter point advances both interests. If protected conduct is made criminal and the law which does so remains unexamined for its substantive validity, its stigma might remain even if it were not enforceable as drawn for equal protection reasons. When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres.
In a crucial passage towards the end, he argues against the prescription of the originalist (like Scalia) who would look to the expectations of the time the text was written, that it is designed as an open text.
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.
Kennedy’s opinion in Lawrence might also be the only opinion to cite briefs from both Mary Robinson and the Cato Institute favourably!
This brings us to US v Windsor (2013). This is not, as those defending the claims of the states have argued, simply a defence of the role of the states in defining marriage. He was rather acknowledging the role of the states in marriage as a preface to this instance of the states expanding expanding its recognition of dignity within its parameters,
Despite these considerations, it is unnecessary to decide whether this federal intrusion on state power is a violation of the Constitution because it disrupts the federal balance. The State’s power in defining the marital relation is of central relevance in this case quite apart from principles of federalism. Here the State’s decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import. When the State used its historic and essential authority to define the marital relation in this way, its role and its power in making the decision enhanced the recognition, dignity, and protection of the class in their own community.
In Justice Brennan: Liberal Champion (Stern and Wermiel, 2013), the authors note that William Brennan would be surprised that the justice who took up the mantel of the leading invoker of human dignity was Anthony Kennedy. While there were a few references to dignity in Lawrence, this was most apparent in United States v Windsor. This is seen in the compassionate way he writes on the relationship at the heart of that case, and of how New York came to embrace this.
Edith Windsor and Thea Spyer met in New York City in 1963 and began a long-term relationship. Windsor and Spyer registered as domestic partners when New York City gave that right to same-sex couples in 1993. Concerned about Spyer’s health, the couple made the 2007 trip to Canada for their marriage, but they continued to reside in New York City.
When at first Windsor and Spyer longed to marry, neither New York nor any other State granted them that right. After waiting some years, in 2007 they traveled to Ontario to be married there. It seems fair to conclude that, until recent years, many citizens had not even considered the possibility that two persons of the same sex might aspire to occupy the same status and dignity as that of a man and woman in lawful marriage.
For others, however, came the beginnings of a new perspective, a new insight. Accordingly some States concluded that same-sex marriage ought to be given recognition and validity in the law for those same-sex couples who wish to define themselves by their commitment to each other. The limitation of lawful marriage to heterosexual couples, which for centuries had been deemed both necessary and fundamental, came to be seen in New York and certain other States as an unjust exclusion.
Slowly at first and then in rapid course, the laws of New York came to acknowledge the urgency of this issue for same-sex couples who wanted to affirm their commitment to one another before their children, their family, their friends, and their community. And so New York recognized same-sex marriages performed elsewhere; and then it later amended its own marriage laws to permit same-sex marriage.
Kennedy is clear on a number of occasions that the state regulation of marriage is protected by the constitutional protection of the Fourteenth Amendment, referencing Loving v Virginia which ended the ban on interracial marriage,
State laws defining and regulating marriage, of course, must respect the constitutional rights of persons, see, e.g., Loving v. Virginia, 388 U. S. 1 (1967) … The States’ interest in defining and regulating the marital relation, subject to constitutional guarantees
Kennedy understand the social effect of this separate status, not only for the couples themselves, but also for their children,
The differentiation demeans the couple, whose moral and sexual choices the Constitution protects, and whose relationship the State has sought to dignify. And it humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.
Kennedy was confined to DOMA rather than the considering state bans, but it is very easy to see how his reasoning could be transferred to rule against bans by any US state. In fact, Antonin Scalia explicitly foresaw as much in his dissent. And I don’t believe that Kennedy stayed his hand out of any reluctance to consider state bans. Kennedy wrote the opinion for the minority in the other significant case of that day, Hollingsworth v Perry. While the majority of the court declined to hear the defence of Proposition 8 on the California ban, Kennedy argued that it should have been considered. If it had, I have very little doubt that Kennedy would have written as strong opinion then in June 2013 forbidding discrimination in marriage.
The purely procedural argument
But if that doesn’t convince, consider the procedural perspective. It is significant that they have chosen to review this decision from the Sixth Circuit which upheld state bans, while in October 2014 they declined to consider decisions of the Fourth, Seventh and Tenth Circuits which struck down lower court bans. The effect of not reviewing those decisions was lead to a domino effect increasing the number of states where gay and lesbian couples could marry from 19 to 37 in a matter of months. In what I believe is the very unlikely event that they find for the states, those marriage would all come into question. This would create such a procedural mess. If there are five votes on the court to uphold the bans, then why would four members not have decided to grant cert to hear one of the cases last October?
So I strongly believe we can look forward to another moving opinion from Anthony Kennedy recognising constitutional equality for gay and lesbian couples. And equally, to another fervent dissent from Antonin Scalia!