Kennedy: The gay marriage justice

Kennedy: The gay marriage justice
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Anthony Kennedy on Friday enshrined his legacy as the gay marriage justice.  

He cast the decisive vote in favor of legalizing same-sex marriage, handing another triumph to the court’s liberal wing after the ruling in 2013 that struck down the Defense of Marriage Act (DOMA).

Kennedy was the author of both opinions, in both cases making the case for gay rights in sweeping, emotional terms.

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“No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family,” Kennedy wrote in a widely quoted passage at the end of Friday’s ruling.

“It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”

“Justice Kennedy” became a top trending topic on Twitter right after the ruling was announced, with gay rights supporters across the country celebrating his role in the ruling.

The plaudits from supporters of gay marriage is an unlikely twist in the judicial career of Kennedy, an appointee of former President Reagan who has long played the role of ideological wild card on the court.

With four of the justices seen as ideologically conservative, and four as ideologically liberal, it has increasingly fallen to Kennedy to break the tie in divisive cases.

The road to Friday’s ruling legalizing gay marriage was paved by the DOMA decision, which found that the federal government could not refuse to recognize gay marriages allowed by the states. 

Ahead of that decision, all eyes were on Kennedy, with speculation swirling about whether he would make a major ideological break with the court’s conservatives to strike down the Clinton-era law.

In the end, he not only voted with the court’s liberal wing to abolish DOMA but wrote an opinion that made the case for gay rights in moral terms.

The Defense of Marriage Act “humiliates tens of thousands of children being raised by same-sex couples,” Kennedy wrote, and serves to “degrade” some marriages in the eyes of society.

Justice Antonin Scalia warned Kennedy's ruling was so broad in scope that gay marriage bans would fall across the country.

“By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition,” Scalia wrote in his 2013 dissent.

That warning proved prophetic, as the DOMA decision set off a chain reaction of lower court rulings that abolished gay marriage bans across the country.

It was those rulings that led to Friday’s landmark decision, with states appealing to the highest court in the land for permission to restore the gay marriage bans put in place by voters.

Borrowing a word he used during oral arguments, Kennedy acknowledged in Friday’s ruling that marriage has been an institution that has existed across civilizations for a “millennia,” but added that “the past does not rule the present.”

“The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy and spirituality,” Kennedy wrote. “This is true for all persons, whatever their sexual orientation.”

In his decision, Kennedy rejected arguments from the states’ attorneys that the definition of marriage should be protected because marriage was designed to safeguard children that are produced in heterosexual relationships.

The fact that states have allowed gays and lesbians to adopt children, either as individuals or as couples, he said, is powerful proof that gays and lesbians can create stable families.

“Excluding same-sex couples from marriage thus conflicts with a central premise of the right to marry,” he said. “Without the recognition, stability and predictability marriage offers, their children suffer the stigma of knowing their families are somehow lesser.” 

Citing Lawrence v. Texas, a case that struck down anti-sodomy laws, Kennedy said the court gave same-sex couples the freedom to be intimate, but argued their freedoms don’t stop there.

He was careful, however, to note that Friday’s ruling does not stop those with opposing views from exercising their First Amendment right to free speech.

“Those who oppose same-sex marriage may continue to advocate that opinion with the utmost, sincere conviction that, by divine precepts, same-sex marriages should not be condoned,” he said. 

The reasoning in Kennedy’s decision surprised some legal scholars. Kent Greenfield, a professor of law and dean's research scholar at Boston College, said he believes Kennedy’s opinion came down on the right side, but argued it’s short on legal analysis.

“It’s more about the right of the people to consummate their love and come together in a way that provides them dignity and social standing rather than an opinion about prejudice, discrimination and equality,” he said. “Kennedy doesn’t do a very good job of putting things in the form we Constitutional law professors have grown to expect.”

In the opinion, Greenfield said Kennedy failed to answer whether sexual orientation should be subject to the higher level of evaluation courts now give to rules that burden people on the basis of race or sex.

“It’s not clear whether this victory is also a victory for other kinds of discrimination against LGBT people,” he said. “Chief Justice Roberts in his dissenting opinion calls the majority opinion out on that.”

The ruling, he said, means there will be more cases where the court will be asked to define the level of justification a government must prove to put restrictions on LGBT people.

If and when those cases arise, it could again fall to Kennedy to decide how far the nation should go in defense of gay rights.