The Supreme Court has decided it will consider two very important cases involving same-sex marriage this term: United States v. Windsor and Hollingsworth v. Perry. Both appeals are likely to split the court in 5-4 decisions, and the central actor that could swing the rulings in either direction is Justice Anthony M. Kennedy. This is good news for America.
Appointed in 1988 by President Ronald Reagan, Justice Kennedy is considered a libertarian conservative who believes:
“Our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education.”
Kennedy, unlike fellow Reagan appointee Justice Antonin Scalia, has shown a notable ability to take a stand against fellow conservative justices on the issue of gay rights.
In 1992, Colorado attempted to amend its Constitution in a statewide referendum referred to as Amendment 2. If enacted, the draconian statute would have prohibited legislative action at any level intended to protect gays on the grounds of sexual discrimination. For example, Amendment 2 would have protected the rights of employers with a moral or religious objection against homosexuality to fire their gay employees. In 1996, the case reached the United States Supreme Court in Romer v. Evans. In a 6-3 decision, the Court ruled that the amendment was unconstitutional. Justice Kennedy wrote the majority opinion:
“Amendment 2 classifies homosexuals not to further a proper legislative end, but to make them unequal to everyone else. A State cannot so deem a class of persons a stranger to its laws. Amendment 2 violates the Equal Protection Clause.”
Siding with the more liberal members of the court, Justice Kennedy took a brave stance by voting against fellow conservatives and current justices Antonin Scalia and Clarence Thomas, both of whom are unlikely to budge from their position on gay rights.
In the 2003 case, Lawrence v. Texas, two Texas citizens challenged their criminal conviction under the Texas ‘homosexual conduct’ law, which criminalized sexual intimacy by homosexual couples but not identical behavior by heterosexual couples. They argued it violated the Fourteenth Amendment guarantee of equal protection of laws. Again, Justice Kennedy ruled along liberal lines and in favor of the couple. And again, Kennedy delivered the opinion of the court:
“The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them full right to engage in their conduct without intervention of the government.”
As before, Justices Scalia and Thomas both dissented.
The first of the two cases to be heard this spring is Hollingsworth v. Perry, which examines “whether the Equal Protection Clause of the Fourteenth Amendment prohibits the State of California from defining marriage as the union of a man and a woman,” which was how it was defined after the passage in 2008 of Proposition 8, a proposition brought forth only a few months after the California Supreme Court ruled that a ban on same-sex marriage was unconstitutional. This raises the question of what sort of government can rationalize the cruel practice of providing its citizens a right, the designation of marriage, only to then allow a proposition whose sole purpose is to withdraw that very right from a minority of those citizens?
In 2010, California Judge Vaughn R. Walker ruled Proposition 8 to be unconstitutional under both the Due Process and Equal Protection Clauses. In his opinion, Walker cites Justice Kennedy’s opinion from Romer v. Evans seven times and Kennedy’s opinion from Lawrence v. Texas eight times!
The second case, United States v. Windsor, challenges Section 3 of the 1996 Defense of Marriage Act (DOMA), which defines marriage for all federal purposes as a union of one man and one woman, thereby legally depriving married same-sex couples of federal benefits otherwise available to married couples, such as tax benefits, pension remunerations, and health benefits. United States v. Windsor specifically asks “whether Section 3 of DOMA violates the Fifth Amendment’s guarantee of equal protection of the laws as applied to persons of the same sex who are legally married under the laws of their State.” Overturning the 1996 act would represent an enormous victory for the equal rights movement and would even further a classically conservative ideal. As New York University Law professor Kenji Yoshino points out,
“DOMA represents an intrusion of federal law into the traditional state domain of family law… Invalidating DOMA would represent a triumph for state sovereignty as well as for gay rights.”
With the backdrop of the historic 2012 election, when nine states legalized same-sex marriage, enshrining equal rights cannot be delayed any longer. Gay Americans have long suffered discrimination and hate, and any law that furthers this maltreatment must be presumed invalid unless government can give a reasonable objective for adopting it. None so far has been given. Currently, only four of the nine Supreme Court Justices are liberal. If America is to better itself by extending equal rights to all Americans regardless of sexual orientation, thanks will likely be due to Justice Anthony M. Kennedy.