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.

Anthony Kennedy. Click image to expand.
Justice Anthony M. Kennedy 

When Judge Vaughn Walker decided Thursday to restart gay marriage in California as of Aug. 18, he turned what had been a tactical headache for supporters of Proposition 8, the voter referendum that banned same-sex marriage two years ago, into a strategic aneurysm. Last week, the only issue they had to worry about was the lousy record they had produced for the appeals courts. They now have much bigger worries after Judge Walker's suggestion that the only group that may be willing to appeal his decision striking down Prop 8—not the state, but ProtectMarriage.com, which defended Prop 8 at trial—may lack standing to do so. As Walker put it, "Proponents may have little choice but to attempt to convince either the governor or the attorney general to file an appeal to ensure jurisdiction."Emily Bazelon explains why the standing issue may derail the whole case. And if that happens, nobody will be happier than Justice Anthony Kennedy.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

Maybe the possibility that the case will blow up over standing will also prove a blessing in disguise for the supporters of Prop 8. Last week, it seemed that the proponents of Prop 8 couldn't possibly fail to appeal even if they secretly wanted to; the political pressure to fight the Walker decision all the way to the highest court in the land would be too high. But on Thursday, audio circulated of fundamentalist activist David Barton speaking on Today's Issues on American Family Radio. As Barton put it, "right now the damage is limited to California only, but if California appeals this to the U.S. Supreme Court, the U.S. Supreme Court with Kennedy will go for California, which means all 31 states will go down in flames" (presumably the states that have voted to reject gay marriage). Barton then continued: "There's an effort underway to say 'California, please don't appeal this. I mean, if you appeal this, it's bad for you guys, but live with it, but don't cause the rest of us to have to go down your path.' " Maybe this question over standing offers ProtectMarriage.com an escape hatch: a way to lose graciously and try to present a stronger case the next time.

Barton's trepidation over Kennedy has become contagious on the right. Last week John Eastman, a conservative law professor who supports Prop 8, told the Los Angeles Times that Walker's analysis would probably persuade Kennedy when the case came before the high court. James Taranto, writing last week in the Wall Street Journal, similarly predicted that "[w]hen the Supreme Court takes up Perry v. Schwarzenegger—perhaps under the name Brown v. Perry or Whitman v. Perry—the justices will rule 5-4, in a decision written by Justice Kennedy, that there is a constitutional right to same-sex marriage." And perhaps the gay-marriage opponent most certain of Kennedy's vote is his colleague, Antonin Scalia. Dissenting from Kennedy's opinion in Lawrence v. Texas, the 2003 case striking down the state sodomy law, Scalia wrote that Kennedy's opinion "dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. …"

And yet the left is almost equally certain that Kennedy will vote not to create a constitutional right to gay marriage. Scott Lemieux wrote at the American Prospect that Kennedy's strong gay rights votes in both Lawrence v. Texas and Romer v. Evans did not predict a yes vote in Perry because of both "the breadth of the case and the level of public opposition." (Jan Crawford similarly told CBS News that even though Kennedy is a "human jump ball" in this case, "this is something that Anthony Kennedy doesn't do. He's a very cautious justice. He doesn't like to get ahead.") Andrew Sullivan has collected some representative samplings of others who likewise don't believe for an instant that Kennedy is seriously in play in this case.

In other words, Kennedy himself has become the Rorschach test, with both sides importing their worst fears onto their assessment of his future vote. Still, it's the only question anyone's asking. Even Yahoo Answers wants desperately to know: What would Kennedy do? (Best answer: They dunno.) It's the question everyone wants answered, and the answer that usually says more about us than it does Kennedy.

For a bit of deeper insight, I turned to a 2004 paper called "The Gay Rights Jurisprudence of Anthony Kennedy," by Artemus Ward, a professor of political science at Northern Illinois University. It's useful to recall that Kennedy's rulings on gay rights extends beyond Lawrence and Romer (the 1996 case that struck down an amendment to the Colorado Constitution that nullified ordinances barring discrimination against homosexuals). Kennedy's been thinking about gay rights cases for decades. While he was on the 9th Circuit Court of Appeals, Kennedy was the deciding vote in Beller v. Middendorf, a dispute over the Navy's decision to discharge three men for homosexual acts. Writing for a 2-1 majority in 1984, Kennedy found that "[d]espite the evidence that attitudes toward homosexual conduct have changed among some groups in society, the Navy could conclude that a substantial number of naval personnel have feelings regarding homosexuality, based upon moral precepts recognized by many in our society as legitimate, which would create tensions and hostilities, and that these feelings might undermine the ability of a homosexual to command the respect necessary to perform supervisory duties." Ward is quick to point out that even though he voted against them in Beller, Kennedy was respectful and thoughtful about the question of gay rights, citing Laurence Tribe and declining to use a mere rational basis test.

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."

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:

Like Slate on Facebook. Follow us on Twitter.