Published: Good Men Project (June 26, 2015)
The four liberal judges on the Supreme Court were expected to support marriage equality, but the fifth is going to take a lot of flak for it. A doff of the hat to Justice Anthony Kennedy.
From a strictly political standpoint, it is a truly remarkable thing that homosexuals throughout America will be allowed to marry. In these hyper-partisan times, we shouldn’t be surprised that the four liberal judges cast their lot with the right side of history. That said, they were joined by a courageous conservative, and every supporter of marriage equality needs to know his name:
Justice Anthony Kennedy
Spoiler alert: I’m going to close this article with the final paragraph of Kennedy’s brief, which he wrote on behalf of the majority that upheld marriage equality rights. It’s so beautiful that it’s gone viral (a rare thing indeed for Supreme Court prose). But first…
Anyone who follows American politics knows that the Supreme Court today contains two wings: The conservatives (Chief Justice John Roberts, Anthony Kennedy, Clarence Thomas, Samuel Alito, and Antonin Scalia) and the liberals (Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan, and Sonia Sotomayor). Few would disagree that this is one of the most fiercely and rigidly partisan courts in recent history. “For the first time, the Supreme Court is closely divided along party lines,” wrote Adam Liptak of The New York Times last year. “The partisan polarization on the court reflects similarly deep divisions in Congress, the electorate and the elite circles in which the justices move.” Even on those notable occasions when a judge has crossed party lines – such as Justice Roberts in National Federation of Independent Business v. Sebelius, which upheld the constitutionality of the Affordable Care Act – he or she has usually done so by resorting to opaque legalese, so as to not offend their base of supporters.
“On the Roberts Court, for the first time, the party identity of the justices seems to be the single most important determinant of their votes,” writes Garrett Epps of The Atlantic. “The five Republican justices sometimes divide in cases (such as the scope of the federal Treaty Power or the validity of ‘buffer zones’ around abortion clinics) that spawn purely ideological debate. But they are united and relentless in pushing for victory in cases that have a partisan valence.” This has decided the shape of decisions ranging from women’s reproductive rights and campaign finance reform to Second Amendment rights and business regulation, proving as much a thorn in the side of the progressive movement as the Republican congress that has obstructed most of President Obama’s domestic agenda since 2011.
And then there has been Anthony Kennedy and the issue of gay rights.
Experts on the modern Supreme Court have written extensively about how Justice Kennedy’s stances on gay rights, abortion, and the separation between church and state have earned him the hatred of conservatives who normally laud his decisions. Although he is undeniably right-wing in most of his judicial thinking, he has established himself as the most independent-minded of the nine judges – and, surprising for a lifelong Republican, has always seemed ahead of his time on gay rights. Indeed, when President Ronald Reagan decided to appoint Kennedy to the court in 1987, Harvard law professor Laurence H. Tribe testified in advance that Kennedy could help in mollifying at least one constituency turned off by Reagan’s anti-LGBT reputation:
“Tony Kennedy was entirely comfortable with gay friends. He said he never regarded them as inferior in any way or as people who should be ostracized, and I did think that was a good signal of where he was on these matters.”
The gay movement may now be hailing Kennedy as a gay rights icon, but make no mistake about it, he is going to pay a steep price among his conservative friends. Justice Scalia has already attacked Kennedy on grounds ranging from hypocrisy to the quality of his writing, he is receiving the predictable support from homophobes on message boards and social media, and legal reporter Jan Crawford Greenburg has commented on the intensely “bitter” quality toward Kennedy that has existed in conservative circles for years because of his reputation on gay rights. If nothing else, the fact that 2015 saw a wave of discriminatory legislation directed against the LGBT community precisely because conservative state legislatures are threatened by the strides made by the gay community.
To this, and speaking for the 57 percent of Americans who wanted the Supreme Court to effectively legalize gay marriage throughout the country, Kennedy wrote the following:
“No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. 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.”
When you write about American politics, so much of your job involves pumping out negativity – criticizing politicians, pointing out the fallacies in popular opinions, etc. On this historic day, as America’s gay community for the first time ever is no longer locked out of a central institution of the nation’s society (paraphasing Kennedy’s decision), it is my pleasure to finally have the opportunity to write something unabashedly positive… dare I say it, even hopeful.
And I owe it all to Justice Kennedy