In the recent U.S. Supreme Court case involving the federal Defense of Marriage Act (DOMA), the writer of the majority’s opinion has been a justice who has been the lynchpin of the major developments in gay rights since 1996.
Justice Anthony Kennedy, a Reagan appointee who garnered a 97 to 0 Senate confirmation vote in 1985, has become what some court watchers have labeled the new swing vote on the Roberts Court.
Generally, Kennedy has been seen as one who tends to side with the conservatives on the court, with the strong exception in gay rights cases.
The first major gay rights case was 1996’s decision in Romer v. Evans, which involved a Colorado-state constitutional amendment denying gay citizens the right to bring local discrimination lawsuits. It passed with 53 percent of the vote.
In a challenge to the amendment, the lawsuit made its way to the U.S. Supreme Court, where Justice Kennedy struck down the state constitutional provision as violating the U.S. Constitution’s 14th Amendment and its “equal protection of the law.”
In overturning the state amendment, Kennedy wrote that the “resulting disqualification of a class of persons from the right to seek specific protection from the law is unprecedented in our jurisprudence,” and that “it is a classification of persons undertaken for its own sake, something the Equal Protection Clause does not permit. “Class legislation . . . is obnoxious to the prohibitions of the Fourteenth Amendment . . ..", quoting the 1883 Civil Rights Cases.
In the end, Colorado and its voters “cannot so deem a class of persons a stranger to its laws,” and Justice Kennedy, along with five other justices, overturned the voter-approved initiative.
In 2003, the High court again saw the majority on a case that overturned a previous decision and expanded the rights of gay Americans. Using the concept of freedom and liberty, Justice Kennedy, writing for the majority in the case Lawrence v. Texas, used a concept of liberty to overturn a 1986 decision in Bowers v. Hardwick that declared there was no constitutional protection for homosexuals to engage in intimate sexual acts.
Justice Kennedy believed that the previous court decision erred in upholding a state sodomy law, in that it violated the idea of individual liberty, citing an earlier court opinion that held:
“At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.”
Justice Kennedy’s noted that “Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do” but that the Bowers ruling denied gay Americans this right.
In ending his opinion, Kennedy wrote, “The petitioners are entitled to respect for their private lives. 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 the full right to engage in their conduct without intervention of the government.”
Now, in this year’s landmark case striking down a component of the federal law defining marriage as between one man and one woman, Justice Kennedy appears to continue his jurisprudence in this area by extending the protection of “liberty” toward gay Americans.
By the state of New York recognizing a same-sex couple’s marriage but the federal government failing to do so, Justice Kennedy again used the cloak of liberty and equal protection to strike down Section 3 of DOMA, writing that the “The Constitution’s guarantee of equality ‘must at the very least mean that a bar congressional desire to harm a politically unpopular group cannot’ justify disparate treatment of that group.”
Unlike in Romer or Lawrence, however, Justice Kennedy used the power of state governments to the advantage for gay Americans, saying that if New York, or any other state, chooses to recognize a status of an individual, the federal government should not “restrict the freedom and choice of couples married under those laws.”
Again, using the notion of liberty found in the Fifth Amendment’s Due Process Clause, Kennedy believes that the federal DOMA law “imposes a disability on the class by refusing to acknowledge a status the State finds to be dignified and proper.”
Most likely, the next round of legal challenges over gay rights will center on the power of some states to deny gay couples, legally married in one state, from receiving recognition in another state. This will inevitably pit the two clauses of Article IV, Section 1 of the U.S. Constitution against one another:
“Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.”
Generally, “full faith and credit” has come to mean that if you drive from your home state to another, that other state must recognize the driver’s license (a record) of your home state. And what is a marriage license but a public record?
But given that Congress can, and indeed did in Section 2 of DOMA, “prescribed” that states do not have to recognize other state’s marriage licenses for same-sex couples, the inherent conflict between the two could serve as the focal point for the next legal challenge.
And, if the decision in Romer v. Evans is any indication, the state constitutional amendments banning same-sex marriages may be subject to Justice Kennedy’s libertarian interpretation of liberty and equal protection.