WASHINGTON

Justice Kennedy's past rulings point way on same-sex marriage

Richard Wolf
USA TODAY
Associate Justice Anthony Kennedy holds the key to the Supreme Court's upcoming decision on same-sex marriage.

WASHINGTON -- Sitting inside the Supreme Court chamber last week, it was hard to read Justice Anthony Kennedy's mind on same-sex marriage.

Anyone doubting his intentions, though, would do well to read his opinions in the court's three prior cases expanding the civil rights of gay men and lesbians. Kennedy, whose vote likely will decide the issue, has steadfastly stood up for their dignity and equality against laws he said lacked a legitimate purpose.

Now, most court-watchers expect him to do it again. That would legalize same-sex marriage nationwide and serve as the capstone of Kennedy's otherwise moderate-to-conservative judicial career -- one that will be remembered mostly for its impact on gay rights.

"In all of these cases, he recognizes that gays and lesbians are entitled to equal protection under the law," says Erwin Chemerinsky, dean of the University of California-Irvine School of Law. "A tradition of discrimination doesn't in Kennedy's eyes justify continuing discrimination."

First came Romer v. Evans, the 1996 case in which the court invalidated a Colorado constitutional amendment that prevented local governments from enacting laws protecting gays and lesbians. Writing for the 6-3 majority, Kennedy said the amendment "inflicts on them immediate, continuing, and real injuries that outrun and belie any legitimate justifications that may be claimed for it."

Then came Lawrence v. Texas, the 2003 case decided by the same 6-3 margin that struck down state sodomy bans aimed at homosexuals. While the case dealt with private sexual conduct, Kennedy said the rights of gays and lesbians to form intimate, lasting relationships was at stake.

"Times can blind us to certain truths," he wrote, "and later generations can see that laws once thought necessary and proper in fact serve only to oppress."

By the time United States v. Windsor reached the court in 2013, Kennedy clearly was the go-to justice on gay rights. So Roberta Kaplan, preparing to argue the New York case against the federal Defense of Marriage Act, read and re-read Romer and Lawrence "dozens if not hundreds of times."

The result was a 5-4 ruling in which the court, through Kennedy, struck down a key section of the law denying federal benefits to legally married gay and lesbian couples.

"The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the state, by its marriage laws, sought to protect in personhood and dignity," he wrote.

So when Obergefell v. Hodges reached the court this year -- challenging same-sex marriage bans in Ohio, Michigan, Tennessee and Kentucky -- gay rights advocates were confident they had Kennedy's vote. To which he appeared to answer, not so fast.

Within minutes, Kennedy noted that the traditional definition of marriage as between man and woman has lasted for "millennia." Then he lamented the court's inability to "consult social science" if it rules for same-sex marriage before sufficient research has been conducted on how it affects children.

"He probably hadn't made up his mind when he went into argument," John Elwood, one of Kennedy's former law clerks who regularly argues before the court, said. "He knows what's important to him, and that's what he was asking about."

But when former Michigan solicitor general John Bursch presented the states' defense of their same-sex marriage bans -- arguing that voters might have felt biological parents are bound to their children for the long haul in ways that same-sex parents are not -- Kennedy said it was "the wrong premise."

"That assumes that same-­sex couples could not have the more noble purpose, and that's the whole point," he said. "Same-­sex couples say, of course, 'We understand the nobility and the sacredness of the marriage. We know we can't procreate, but we want the other attributes of it in order to show that we, too, have a dignity that can be fulfilled."

Michael Dorf, a constitutional law professor at Cornell Law School and another former Kennedy law clerk, said those comments "pretty strongly indicated that he just wasn't buying it."

His earlier misgivings about "millennia" and social science, Dorf says, were just signs that Kennedy was "making himself comfortable with what he intends to do."

Sitting in the court's soaring marble chamber two years after presenting her own case, Kaplan began to hear what she had expected. It was what she had read in Romer, Lawrence and Windsor.

"In a really lovely way," she says, "Justice Kennedy is aspiring to larger principles of human decency, justice and fairness that, frankly, are way above the run-of-the-mill Supreme Court case."