What will Anthony Kennedy do on gay marriage?

The law, lawyers, and the court.
Aug. 13 2010 7:20 PM

What Will Anthony Kennedy Do on Gay Marriage?

It's the question driving the entire Prop 8 train.

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Ward reminds us that at his 1987 confirmation hearing for the Supreme Court, Kennedy testified that "there is a zone of liberty, a zone of protection, a line that is drawn where the individual can tell the government: Beyond this line, you may not go." When questioned about Beller,Kennedy replied,"This was the first case involving a challenge to the discharge of homosexuals from the military, and I spent a great deal of time on it, and I thought it important for the reader and for the litigants to know that I had considered their point of view." Writes Ward, even though Kennedy voted against them, "Kennedy's remarks once again showed that in his mind, gay rights claims were valid and deserved serious consideration." In 1995, the court unanimously decided Hurley v. Irish-American Gay, Lesbian, and Bi-Sexual Group of Boston, holding that the St. Patrick's Day parade organizers had a free-speech right to exclude an Irish gay group from participating in the parade.

Which made it so surprising when, in 1996, Kennedy sounded such a sure and forceful note in Romer v. Evans, the Colorado case. Notes Ward, after Romer, retired Justice Harry Blackmun, who had written Roe v. Wade, sent Kennedy a note: "Monday's decision took courage. You will now undoubtedly receive a lot of critical and even hateful mail. I have had that experience and still receive letters, some of them abusive, in almost every mail. Hang in there." To which Kennedy replied, "No one told us it was an easy job when we signed on." Ward also quotes a clerk from that term—not one of Kennedy's—explaining why Kennedy so badly wanted to author the opinion: "Kennedy definitely wanted the case. … His big shtick was this was an exceptional case, this was an outrage. He wanted to sock it to the people of Colorado. The emphasis on motive, bad guys is very much Kennedy."

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Those hoping that Kennedy would forever be a strong advocate after Romer would soon be disappointed. In 2000, Kennedy voted with the majority in Boy Scouts of America v. Dale, allowing the Boy Scouts to bar gay troop leaders, based on the group's rights of free expression and free association. Trying to square this no-yes-no-yes pattern with Kennedy's blockbuster decision in Lawrence, Ward concludes that what really changed over Kennedy's tenure at the court was an uptick in the number of gay rights cases at the court, a growing acceptance of gays and lesbians in the political arena, and the presence of new justices, like Breyer and Ginsburg, who were open to gay rights.

Thus, when faced in 2004 with the now-urgent question of what Kennedy might do on gay marriage, Ward was far less certain than all the advocates on both sides who say they're sure they'll lose. He concludes that Kennedy's "opinions in Romer and Lawrence can be considered precedent to expand gay rights, including gay marriage. At the same time, they could constrain his choices and he could be unwilling to extend his position to more controversial gay rights claims." And that's pretty much the uncertain Kennedy landscape we've all come to recognize. Ward is certainly right that "future gay rights claims will be treated seriously" by Kennedy, but he'd also ask you to remember that the justice will be equally attuned to the opinion polls, the mood of the country, and the strong pushes and pulls from his colleagues. In other words, anyone seeking deeper hints or tips on what Kennedy might do in Perry is probably just going to have to wait and see. Kennedy may not even know yet himself.

Slate V: Watch Mark Fiore's animated commentary on activist judges:

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