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Justice Kennedy's Past and the Future of Prop 8

August 5, 2010

In the wake of his ruling overturning California's Prop 8 ban on same-sex marriage, one legal observer concluded Judge Vaughn Walker "is speaking to Justice Kennedy." Slate's Dahlia Lithwick went a step further, suggesting that while "Judge Vaughn R. Walker is not Anthony Kennedy," he "certainly knows how to write like him."
If so, Judge Walker's strategy for enabling his decision to survive certain Supreme Court scrutiny is a sound one. After all, the often temperamental, self-absorbed Anthony Kennedy isn't merely the swing vote on one of the most conservative Courts in decades. The man Jeffrey Rosen derided as the "Supreme Leader" also happens to have written the majority opinions in the Court's Lawrence and Romer decisions, two of the most important rulings in protecting the rights of gay Americans.
First, a little background.
Beginning in the 1960's, a string of Supreme Court decisions, sometimes leading and sometimes trailing public opinion, reshaped the national consensus on issues of privacy, family and reproduction. From Griswold v. Connecticut (regarding contraception in 1965) to Loving v. Virginia (1967 ruling overturning state laws banning racial intermarriage) and finally Roe v. Wade (1973 decision protecting abortion rights), the Court elucidated a right to privacy and built on the due process and equal protection clauses of the 14th Amendment, striking down state laws abridging the most personal and basic of freedoms.
But for gay and lesbian Americans, progress has been uneven, to say the least. Neither the 14th Amendment protections nor the right to privacy emanating from "penumbras" of the 9th Amendment described in Griswold were sufficient to protect homosexuals from prosecution under state sodomy laws, even as late as 1986. Justice Byron White upheld the constitutionality of a Georgia statute against sodomy in Bowers v. Hardwick. A 5-4 majority reversed the 11th Circuit Court's ruling and explicitly stated that neither the right to privacy described in Griswold (and subsequent cases) nor the due process clauses of the 5th and 14th Amendments conferred a right to engage in homosexual activity within one's own home. White's opinion also strongly reinforced the need to defer to long-held traditions of morality in the law:

Proscriptions against that conduct have ancient roots...The law, however, is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed.

Two decisions in the past two decades, however, have effectively reversed Bowers and could well impact the gay marriage debate as cases from Massachusetts and now California wind their way through the system. First, the 1996 decision in Romer v. Evans invalidated Colorado's constitutional Amendment 2, a measure passed by referendum which precluded "all legislative, executive, or judicial action at any level of state or local government designed to protect the status of persons based on their "homosexual, lesbian or bisexual orientation, conduct, practices or relationships."
Justice Kennedy's 7-2 majority opinion recalled Justice Harlan's dissent in Plessy that the Constitution "neither knows nor tolerates classes among citizens." (Justice Scalia, citing Bowers, of course dissented.) Citing the Equal Protection clause of the 14th Amendment, Kennedy struck down the Colorado provision and rejected the "special rights' language of its proponents:

The State's principal argument that Amendment 2 puts gays and lesbians in the same position as all other persons by denying them special rights is rejected as implausible...Even if, as the State contends, homosexuals can find protection in laws and policies of general application, Amendment 2 goes well beyond merely depriving them of special rights. It imposes a broad disability upon those persons alone, forbidding them, but no others, to seek specific legal protection from injuries caused by discrimination in a wide range of public and private transactions.

Kennedy, also citing the Equal Protection clause, similarly rejected the notion that the State had a compelling interest or legitimate legislative end in enacting Amendment 2:

In order to reconcile the Fourteenth Amendment's promise that no person shall be denied equal protection with the practical reality that most legislation classifies for one purpose or another, the Court has stated that it will uphold a law that neither burdens a fundamental right nor targets a suspect class so long as the legislative classification bears a rational relation to some independent and legitimate legislative end...Amendment 2 fails, indeed defies, even this conventional inquiry...Amendment 2 cannot be said to be directed to an identifiable legitimate purpose or discrete objective. It is a status-based classification of persons undertaken for its own sake, something the Equal Protection Clause does not permit.

In the 2003 Lawrence v Texas case, the Court in a 6-3 decision invalidated the prosecution of two men under a Texas sodomy statute and reversed Bowers altogether. Again writing for the majority, Justice Kennedy overturned Bowers on both privacy and due process grounds:

Bowers' rationale does not withstand careful analysis. In his dissenting opinion in Bowers Justice Stevens concluded that (1) the fact a State's governing majority has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice, and (2) individual decisions concerning the intimacies of physical relationships, even when not intended to produce offspring, are a form of "liberty" protected by due process. That analysis should have controlled Bowers, and it controls here. Bowers was not correct when it was decided, is not correct today, and is hereby overruled.

If that language sounds familiar, it should. Looking at Judge Walker's decision Wednesday in the California Proposition 8 case, Slate's Lithwick noted, "I count--in his opinion today--seven citations to Justice Kennedy's 1996 opinion in Romer v. Evans (striking down an anti-gay Colorado ballot initiative) and eight citations to his 2003 decision in Lawrence v. Texas (striking down Texas' gay-sodomy law)."

In a stunning decision this afternoon, finding California's Proposition 8 ballot initiative banning gay marriage unconstitutional, Walker trod heavily on the path Kennedy has blazed on gay rights: "[I]t would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse," quotes Walker. "'[M]oral disapproval, without any other asserted state interest,' has never been a rational basis for legislation," cites Walker. "Animus towards gays and lesbians or simply a belief that a relationship between a man and a woman is inherently better than a relationship between two men or two women, this belief is not a proper basis on which to legislate," Walker notes, with a jerk of the thumb at Kennedy.

And in perhaps the defining section of his Prop 8 opinion, Walker echoed Kennedy's words from Lawrence and Romer in striking down California unconstitutional ban on marriage equality:

Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional.

Sadly for advocates of marriage equality, when it comes to Justice Anthony Kennedy, past performance is no guarantee of future results. As Professor Jesse H. Choper, a professor of law at the University of California, Berkeley, put it, "I have no way of predicting how he'd come down on this, and I don't think he does, either, at this point."
In part that's because, as Jeffrey Rosen scoffed in The New Republic three years ago, "Anthony Kennedy seems most at home when he is lecturing others about morality." And that self-righteous moralizing - unsupported by either science or the law - was on display in Kennedy's appallingly paternalistic and condescending opinion in the Gonzales v. Carhart partial birth abortion case.
Despite 20 years of research which found that there is no evidence to support the mythical "post-abortion syndrome" hyped by anti-abortion forces, Justice Kennedy in April 2007 upheld a federal late term abortion ban on the grounds that "some women come to regret their choice."
Sadly, distorting science to advance a political agenda perfectly describes Justice Kennedy's jaw-dropping Carhart opinion. Reversing the Court's position on so-called partial birth abortion just seven years after it struck down a similar Nebraska law, Kennedy swept away Justice Breyer's previous exception for "for the preservation of of the mother." Derisively referring to physicians as "abortion doctors" and with callous disregard for the health of American women, Kennedy in the 5-4 majority opinion decreed that father knows best. As the Washington Post's Ruth Marcus recalled:

"Respect for human life finds an ultimate expression in the bond of love the mother has for her child," Kennedy intoned. This is one of those sentences about women's essential natures that are invariably followed by an explanation of why the right at stake needs to be limited. For the woman's own good, of course.
Kennedy continues: "While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained." No reliable data? No problem!

The State has "ethical and moral concerns that justify a special prohibition," Kennedy argued, because "it is self-evident that a mother who comes to regret her choice to abort must struggle with grief more anguished and sorrow more profound when she learns" the details of the abortion procedure.
As Marcus suggested, Kennedy's mantra of "no data, no problem" was never justifiable as a matter of either law or science, and after yet more recent research findings, is no longer operative. Unfortunately, that comes too late for the reproductive rights of American women.
After the Supreme Court's Bush v. Gore ruling that decided the 2000 presidential election, Justice John Paul Stevens lamented, "The identity of the loser is pellucidly clear. It is the Nation's confidence in the judge as an impartial guardian of the rule of law." And now as then, Justice Anthony Kennedy may well be thrust into that role of impartial guardian, a part marriage equality advocates should rightly worry doesn't suit him well.
As for their odd couple legal team of Ted Olson and David Boies, the winners of this round of Perry v. Schwarzenegger joked about their prospects going forward. As Boies put it:

"Ted and I have a deal -- He is going to get the 5 justices that were for him in Bush v. Gore and I'm going to get the 4 justices that were with me in Bush v. Gore."

But even with Elena Kagan poised to join the Supreme Court, there's likely only one Justice who matters.


Jon Perr
Jon Perr is a technology marketing consultant and product strategist who writes about American politics and public policy.

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