Later this summer the Supreme Court will decide whether the Constitution requires that every state recognize same-sex marriages. Thus, in a ritual that would seem bizarre if it had not become so ordinary, nine lawyers will issue a decision authoritatively resolving subtle and far-reaching issues that are not distinctively legal. After all, the ancient institution of marriage implicates difficult questions about history, culture, psychology, and morality. Adding to the strangeness of a vast and proud nation breathlessly awaiting the opinions of these nine individuals on such matters is the widely recognized likelihood that the decisive vote will be exercised by just one man, Justice Anthony Kennedy.
Most observers think Justice Kennedy will vote to require that every state recognize same-sex marriages. The basis for this prediction can be dressed up in the arcane language of lawyers but it, too, is not distinctively legalistic. In three major cases, Kennedy has voiced a strong sense of sympathy for the plight of homosexuals in our society. He has shown himself to be deeply suspicious of the motives of those who have moral reservations about homosexual conduct. And he has asserted that the decision to engage in such conduct implicates the deepest considerations of self-respect and self-definition.
There are, however, two reasons to doubt that the issue is all that clear for Justice Kennedy. The first is that invalidation of traditional marriage laws would impose a single policy on all 50 states. This result would conflict with Kennedy’s emphatic and eloquent support for the independent authority of states in our federal system. In fact, Kennedy has recently invoked this principle of federalism as a reason for national deference to state decisions about the institution of marriage.
The second reason for caution in predicting Kennedy’s vote is that his support for gay rights has been apparent in cases where he was convinced that the motivation for differential treatment of homosexuals was based specifically on prejudice or animus. This supposition, for example, was plausible (though not inevitable) in a case involving criminal prosecution of homosexual sodomy and in a case challenging a broad legal bar to the assertion by gays of legal claims of discrimination.
Justice Kennedy is aware, of course, that marriage has been defined in terms of heterosexual couples for millennia and in many different countries. Whatever may be his opinion about controversial claims regarding historical exceptions to this pattern, it is rather difficult to see hostility to homosexuals as a central consideration behind an institution deeply embedded in so many historical and cultural circumstances.
The cynical—but perhaps realistic—response is that, despite the importance of state sovereignty and the unique place of marriage in human history, Justice Kennedy will vote to strike down traditional marriage laws because he has simply chosen sides in the culture wars. If true, this means that he will vote to impose his political and moral preferences—that is, one lawyer’s personal opinions will masquerade as law.
This depressing possibility is supported by aspects of Justice Kennedy’s opinions extolling the virtues of federalism. The fact is that Kennedy’s brave words in support of state sovereignty often appear in cases where state policies do not represent any real conflict with national priorities. For instance, he has supported a degree of state autonomy over policies regarding guns in schools and violence against women. But the national statutes on these issues were largely superfluous displacements of existing state laws. In contrast, on same-sex marriage there are a variety of state policies representing sharply differing moral positions.
Where state autonomy would actually threaten the authority of the central government, Kennedy’s support for decentralization dissolves into fervent nationalism. Given the obvious symbolism of the federal judiciary and the Constitution as embodiments of nationhood, this is especially true when central authority takes the form of constitutional decisions by federal judges. A striking illustration is Justice Kennedy’s opinion in Brown v. Plata, a 2011 decision approving of a federal district court injunction ordering California to release 46,000 prisoners in order to ease overcrowding and improve medical care within the prison system.
This decision authorized federal displacement of traditional state authority over law enforcement and prisons. It declared quintessentially executive and legislative judgments about matters like prison management, public safety, and budgeting to be within the province of federal judges. In short, disagreements between state and federal authorities led to an emphatic and radical assertion of national power.
It is possible to dismiss Brown v. Plata as an unavoidable consequence of the supremacy of federal constitutional rights over state intransigence. The underlying finding of a constitutional violation, however, was itself a dubious assertion of national power. The grossly inadequate levels of medical care provided to many prisoners arguably did not violate the rights of those prisoners who had not been subjected to that care and, in any event, did not necessarily justify the wholesale federal takeover of the state prison system.
The troubling possibility raised is that Justice Kennedy’s commitment to federalism fades precisely in proportion to the doubtfulness and fragility of the national government’s claim to constitutional authority. This possibility finds spectacular confirmation in the notorious case of Planned Parenthood v. Casey, in which the Court reaffirmed the constitutional status of the right to abortion.
In Casey, Justice Kennedy angrily condemned state-based disagreement with the original abortion decision, Roe v. Wade, which is certainly one of the most questionable constitutional decisions in American history. Kennedy went so far as to claim that the objective of Roe had been to end political conflict on the abortion issue. Accordingly, ongoing contention over the right to abortion was, he wrote, incompatible with “the character of a nation of people who aspire to live according to the rule of law.” Thus the tenuousness of the federal judiciary’s claim of legal authority over abortion policy—a claim that Justice Byron White had once described as “an exercise of raw judicial power”—made state-based disagreement seem an intolerable threat to national unity.
These considerations suggest that Justice Kennedy must be finding the same-sex marriage issue deeply vexing. Having been accused by Justice Antonin Scalia, among others, of abandoning law to take sides in the culture wars, Kennedy presumably understands that his previous opinions in favor of gay rights are, like the initial abortion ruling, vulnerable to charges of illegitimate overreach. Perversely, however, this intellectual tenuousness might well produce in Kennedy a sense that national unity is being dangerously undermined by those who disagree with his pronouncements on gay rights, not to mention by those who are battling the many lower federal court rulings invalidating traditional marriage laws.
Nevertheless, the politics of abortion and same-sex marriage are different in important ways. While the moral and political divide over abortion seemed unbridgeable to Kennedy, public opinion appears to be shifting inexorably in favor of gay rights and same-sex marriage. The opponents, if viewed as a vanishing faction, are harder to characterize as dangerous threats to national unity or the rule of law. Moreover, as their numbers diminish, traditionalists’ arguments might seem to Kennedy to be a fairly harmless and quaint religious relic rather than an expression of hatred.
Because of these diminishing numbers, however, the moral positions of marriage traditionalists may be harder to understand or credit. What, except prejudice and ill-will, could possess these holdouts against a benign tidal wave of acceptance and inclusiveness?
So pity Justice Anthony Kennedy. Given his judicial record, he is beset by many uncertain and conflicting questions, none of which can be resolved by resort to conventional legal materials. It will be a shame if he deprives the rest of us of a meaningful opportunity to consider these same questions.
Robert F. Nagel, a professor of law at the University of Colorado, is the author, most recently, of Unrestrained: Judicial Excess and the Mind of the American Lawyer.
