Patterico's Pontifications

8/15/2010

What Will Anthony Kennedy Do on Gay Marriage?

Filed under: General — Patterico @ 3:26 pm

Dahlia Lithwick asks the question in her latest piece for Slate. She says everyone on both sides thinks he will go against their own views, while in reality, he may not know himself:

[Religious activist David] Barton’s trepidation over Kennedy has become contagious on the right. Last week John Eastman, a conservative law professor who supports Prop 8, told the Los Angeles Times that Walker’s analysis would probably persuade Kennedy when the case came before the high court. James Taranto, writing last week in the Wall Street Journal, similarly predicted that “[w]hen the Supreme Court takes up Perry v. Schwarzenegger—perhaps under the name Brown v. Perry or Whitman v. Perry—the justices will rule 5-4, in a decision written by Justice Kennedy, that there is a constitutional right to same-sex marriage.” And perhaps the gay-marriage opponent most certain of Kennedy’s vote is his colleague, Antonin Scalia. Dissenting from Kennedy’s opinion in Lawrence v. Texas, the 2003 case striking down the state sodomy law, Scalia wrote that Kennedy’s opinion “dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. …”

And yet the left is almost equally certain that Kennedy will vote not to create a constitutional right to gay marriage. Scott Lemieux wrote at the American Prospect that Kennedy’s strong gay rights votes in both Lawrence v. Texas and Romer v. Evans did not predict a yes vote in Perry because of both “the breadth of the case and the level of public opposition.” (Jan Crawford similarly told CBS News that even though Kennedy is a “human jump ball” in this case, “this is something that Anthony Kennedy doesn’t do. He’s a very cautious justice. He doesn’t like to get ahead.”) Andrew Sullivan has collected some representative samplings of others who likewise don’t believe for an instant that Kennedy is seriously in play in this case.

In other words, Kennedy himself has become the Rorschach test, with both sides importing their worst fears onto their assessment of his future vote. . . . [A]nyone seeking deeper hints or tips on what Kennedy might do in Perry is probably just going to have to wait and see. Kennedy may not even know yet himself.

As regular readers know, I have come out with the rather iconoclastic view that Kennedy will vote to reverse the obnoxious Walker decision. Although a shocking prediction is more impressive if it comes true without explanation of the logic behind it, I thought I might pull back the curtain and explain some of my thinking.

First and foremost in my mind is the way that the previous appeal on this very case went down. The opinion staying the televising of the proceedings was 5-4. It was a per curiam decision, but it was clear who was in the majority, because the dissenters named themselves: and they were the four liberals. Not Kennedy.

Yes, in theory, that was a procedural issue. But it indicated something about the way the Justices viewed the underlying issues — and the opinion itself, with its description of the thuggery of anti-8 forces, was very telling. The fact that it broke 5-4 along partisan lines, with Kennedy in the majority, is the best ray of hope that Proposition 8 proponents have. In fact, the day that opinion came down is the day I felt I knew how Anthony Kennedy would eventually vote on the underlying issue.

Lithwick claims that Scalia predicted that Kennedy would vote for gay marriage, quoting Scalia’s dissent in Lawrence v. Texas as asserting that Kennedy’s opinion

dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. …

This is classic dissent writing: the dissenter says “Your opinion is so ridiculous that it would permit x.” But Kennedy’s opinion contains numerous phrases that show he had gay marriage in mind — and wasn’t willing to go so far as to make the government sanction it:

The statutes do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals.

This, as a general rule, should counsel against attempts by the State, or a court, to define the meaning of the relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects.

. . . .

The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.

Sandra Day O’Connor, who concurred in the judgment, made her feelings along these lines even more explicit:

Texas cannot assert any legitimate state interest here, such as national security or preserving the traditional institution of marriage. Unlike the moral disapproval of same-sex relations–the asserted state interest in this case–other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group.

Her opinion was not joined by Justice Kennedy or anyone else, so its power to reveal Kennedy’s views is limited and arguably nonexistent. But O’Connor’s opinion makes it clear that a swing justice could easily accept Lawrence v. Texas‘s result and still oppose constitutionalizing gay marriage.

Again: I could be wrong about all of this. I have made it clear on many occasions that I don’t respect Justice Kennedy, and do not believe that he holds any legal principle to be more important than his own self-aggrandizement. He could once again fall under the spell of the siren song of the New York Times editorial page. It wouldn’t be the first time.

But these are some of the reasons that I think my prediction is not actually as shocking as it might seem in the abstract.

35 Responses to “What Will Anthony Kennedy Do on Gay Marriage?”

  1. One thing to consider is that civil unions essentially reframed the debate, effectively “divorcing” the issue of the definition of marriage from whether or not same-sex couples should have any of the legal incidents of marriage.

    And the California Supreme Court ruled post-Prop 8 that people can enter into officially recognized, and protected family relationship that enjoys all of the constitutionally based incidents of marriage” with persons of the same sex (Strauss v. Horton)

    How would that affect Kennedy’s analysis? If another case arrives from another state that denies same-sex partnerships the incidents of marriage, how would that further help decide the issue?

    Michael Ejercito (249c90)

  2. Well, I said it before and i will only link to it this time.

    Kennedy only gets activist when he doesn’t think we will mind.

    so:

    1) no right to gay marraige.

    2) probably a right to an equivalent such as civil unions.

    I lay out my argument in alot more detail, here:

    http://allergic2bull.blogspot.com/2010/08/why-kennedy-probably-wont-invalidate.html

    Aaron Worthing (A.W.) (f97997)

  3. Well, I said it before and i will only link to it this time.

    Kennedy only gets activist when he doesn’t think we will mind.

    so:

    1) no right to gay marraige.

    2) probably a right to an equivalent such as civil unions.

    I lay out my argument in alot more detail, here:

    http://allergic2bull.blogspot.com/2010/08/why-kennedy-probably-wont-invalidate.html

    I wonder. Would a state have an interest in limiting civil unions to sexual partners?

    What constitutional justification would they have in denying civil unions to a pair of sisters or a trio of siblings?

    And anyway, I liked reading Judge Kozinski’s dissent in Silveira. v. Lockeyer.

    As guardians of the Constitution, we must be consistent in interpreting its provisions. If we adopt a jurisprudence sympathetic to individual rights, we must give broad compass to all constitutional provisions that protect individuals from tyranny. If we take a more statist approach, we must give all such provisions narrow scope. Expanding some to gargantuan proportions while discarding others like a crumpled gum wrapper is not faithfully applying the Constitution; it’s using our power as federal judges to constitutionalize our personal preferences.

    Michael Ejercito (249c90)

  4. Kennedy had Casey blow up in his face over partial birth abortion…

    http://en.wikipedia.org/wiki/Stenberg_v._Carhart#Dissents

    he won’t let Lawrence do the same… he will uphold Prop 8 only because California had civil unions before hand… this may force civil unions everywhere, or it will lead the path for a future decision mandating civil unions everywhere…

    yarrrr (ebd040)

  5. Looking at interviews and statements that Ginsburg has made on ROE V Wade and how it was decided I am not so sure she is a sure YES vote for gay marriage

    jh (4fb77b)

  6. Yes, in theory, that was a procedural issue. But it indicated something about the way the Justices viewed the underlying issues — and the opinion itself, with its description of the thuggery of anti-8 forces, was very telling. The fact that it broke 5-4 along partisan lines, with Kennedy in the majority, is the best ray of hope that Proposition 8 proponents have.

    This is undercut somewhat because Justice Kennedy has long been a vocal opponent of cameras in the courtroom. The issue in that appeal? Putting cameras in the Prop 8 courtroom.

    Gabriel Malor (773d47)

  7. I recently learned that the district court in New Orleans had dismissed Bonilla v. Hurst for failure to serve the defendants.

    It was not a dismissal on the merits, so the plaintiffs could refile.

    Michael Ejercito (249c90)

  8. The vast majority of our (constitutional) laws have a moral basis. Murder is not morally right, theft, assault, trespassing, child porn and on and on…
    Just heard someone say that if our State were to eliminate all laws which are based in morality, we would be left with laws regarding our State’s flag and our State bird.
    When a law countering morality is created, or a moral law is struck down because of the whim of an activist judge, governor, POTUS… Our State and/or Nation is diminished.
    “What you compromise to keep, you will lose.”
    Next up, poligamy, marriage to beasts, marriage to children, incestual marriage; anything which has one, or more willing particpant(s).
    To what end and to what purpose? Purposeful destruction of America and OUR Constitution.

    jsbrodhead (82551c)

  9. Patrick, it’s nice to see you blogging more frequently of late. Your pungent analysis is very distinctive (not that DRJ doesn’t do a great job!).

    Hey, sometime when you get a chance, how about your opinion about the ten worst Americans In US history? Do you think James McReynolds, Roger Taney, and Harry Blackmun should go on the list? SCOTUS ought to have at least three of the ten, I think.

    Andrew (e64645)

  10. Some of your non-lawyer readers may not know, Patterico, that SCOTUS rulings on such things as emergency stay applications — including both the earlier ruling on televising the trial and the anticipated ruling on putting Judge Walker’s decision into affect pending appeals — are nominally considered to be distinct and apart from rulings “on the merits.” It’s entirely possible, and not terribly uncommon, for the ultimate ruling “on the merits” to turn out opposite to the suggestion given by the ruling on the stay application.

    One factor that’s supposed to play a part in appellate judges’ consideration of a stay application, however, is “probability of success on the merits.” That’s just another way of saying that if an appellate judge is already really, really sure that a trial court’s decision is wrong, that would be a factor (but not necessarily the sole determinative factor) weighing in favor of granting an emergency stay application. It’s still possible — just harder — to get an emergency stay if the appellate judge(s)’ first reaction is that the trial court’s decision was probably correct.

    Such rulings generally don’t establish any formal precedent for other cases; in a very limited sense, they become part of the procedural history of the particular case in which they’re issued, and part of the “law of the case,” meaning they won’t be revisited without a showing of a good reason to do so. (The “law of the case” meant, for example, that Judge Walker wasn’t free to ignore the SCOTUS stay on his interim ruling to televise the trial; he was bound by the Supreme Court’s ruling on the stay application, at least for all purposes connected with this case, absent some very extraordinary change in the circumstances or a dramatic change in the law in the interim.)

    Rulings on emergency stay applications are typically announced in terse procedural language without much, if any, explanation (in large part to avoid pre-committing the appellate judge(s) expected eventual ruling “on the merits”). Dissents are very rare indeed; that there were dissents in the SCOTUS ruling staying TV shows that this case has already jumped out from the pack and is recognized even by the SCOTUS as likely to be, or become, an exceptionally important case.

    Rulings on stay applications are typically made in a hurry, without as much briefing and certainly without as much discussion and reflection as the ultimate decisions on the merits. So they’re “hipshot” responses, which tend to reflect an appellate judge’s instinctive and initial reaction.

    I mention all this because I think in general it tends to support your prediction about Kennedy. Yes, it’s possible, in theory, that Kennedy might vote for a stay now, but ultimately vote to affirm Judge Walker’s decision. But that’s not very probable.

    Those who were watching intently as Bush v. Gore played out between the SCOTUS and the Florida Supreme Court will recall that the SCOTUS’ stay rulings did indeed telegraph the ultimate disposition of the case, even though they didn’t reveal the details or the legal reasoning that ultimately would persuade each of the Justices who’d been convinced that the Florida Supreme Court was denying equal protection to Bush and his voters.

    Beldar (6921f4)

  11. By the way, does anyone else recall that it was just a few weeks ago that Lithwick was writing that it was unwise for Obama to try to choose a replacement for Justice Stevens who’d be particularly influential with Justice Kennedy?

    Beldar (6921f4)

  12. Just heard someone say that if our State were to eliminate all laws which are based in morality, we would be left with laws regarding our State’s flag and our State bird.

    Not just that.

    Victimless laws are based on morality, such as laws against prostitution, bigamy, consensual incest, and gambling.

    Michael Ejercito (249c90)

  13. Lemme put that another way: If there’s anyone whom I’m pretty sure Anthony Kennedy will not be moved by on the subject of same-sex marriage, it’s new Justice Elena Kagan.

    Beldar (6921f4)

  14. Well okay. As far as the basics of morality, that’s what bugs you-know-who at Whitehouse central. I hope that if this case goes full rainbow and the judge decides to keep the ban, then Obama should swing for the fence big time. He should issue EOs or whatever it takes and get this thing moving across state lines. Call it a tax, have Appropriations or someone jam it in with some critical funding bill. Make EVERY American BUY a gay marriage license regardless of orientation. And why stop at gay couples. That’s discrimination. It leaves out millions of people who may embrace their inner swish late in life. Once the judge rules constitutionally conveniently, Obama needs to launch a nationwide tour and convince the public: Individually mandated gay marriage licenses. For social justice. And because this man can sell ANYthing! Eleventy

    Vermont Neighbor (b42f28)

  15. gay marriage???? is gay a pre requisite to same gender marriage? who says that homosexuals own this right? two friends can marry and not be homosexual, same GENDER marriage.

    drone (8f0fb9)

  16. two people of the same gender can now marry for tax planning or financial planning purposes.

    drone (8f0fb9)

  17. __________________________________

    who says that homosexuals own this right?

    And don’t forget the needs and rights of bisexuals (and technically and socially, a lot of gays actually are bisexual). If certain guys or girls desire striking up serious, intimate relationships with both women and men, they should be accommodated the same way that polygamists need to be accommodated. So bisexuals should be allowed to have BOTH a wife and husband. Call it a 2-for-1 deal.

    Mark (411533)

  18. Patterico:

    As regular readers know, I have come out with the rather iconoclastic view that Kennedy will vote to reverse the obnoxious Walker decision….

    But these are some of the reasons that I think my prediction is not actually as shocking as it might seem in the abstract.

    Not that iconoclastic or shocking, Pat! I made the same prediction you did — but I made it on August 11th, in Pyrrhic Evictory, a couple of days before you made yours on the 13th.

    So there.

    Me? Petty? Shirley, you jest.

    Dafydd

    Dafydd the Territorial (632d00)

  19. (Actually, I first posted that opinion in a comment I wrote on August 10th to one of my own previous posts, the “Screw the Court” Constitutional Amendment.

    (Double so-there!)

    DaH

    Dafydd the Territorial (632d00)

  20. So see you guys in court?

    Shirley Ujest (2bb27b)

  21. “Next up, poligamy, marriage to beasts…”

    We already have the latter, and I’ve got the ex-wives to prove it.

    Dave Surls (d3e3f1)

  22. > What Will Anthony Kennedy Do on Gay Marriage?

    I vote for breaking into a rousing chorus of “I’m A Lumberjack“.

    What?

    We don’t get to vote?

    Well that’s no fun.

    IgotBupkis, President, United Anarchist Society (9eeb86)

  23. Beldar

    I want to note for the record that I haven’t read Lithwick for years. It used to be that you could count on her reporting on issues like oral arguments accurately, with clear commentary mixed in. now her “reporting” is the commentary. I think the Heller v. D. of C. was the final straw.

    She asserted that Kennedy was imagining being attacked by bears and Scalia was obsessed with taking guns from catholics. Which is a funhouse mirror version of what their arguments were. What Kennedy was talking about was how unthinkable it was for people in the founders to imagine life without a gun, because they were starve or be mauled by bears without them. And Scalia was talking about how when England passed laws banning guns for catholics, he was making the point that when they wanted to BAN guns the laws in England use the language of “keep and bear arms.” The logical point being that if you want to protect the right have guns, it is natural to use the same language.

    Which isn’t to say Lithwick wouldn’t have any room at all to criticize those views. But why not fairly represent them AND THEN criticize them? slate is an online only magazine, so the adage that “pixels are cheap” applies here. So its not like she is short on space.

    Aaron Worthing (A.W.) (e7d72e)

  24. 15.gay marriage???? is gay a pre requisite to same gender marriage? who says that homosexuals own this right? two friends can marry and not be homosexual, same GENDER marriage.
    Comment by drone — 8/15/2010 @ 10:38 pm
    16.two people of the same gender can now marry for tax planning or financial planning purposes.
    Comment by drone — 8/15/2010 @ 10:41 pm

    — It’s a good point. While “gay marriage” is a commonly used term, it really is “same-sex marriage” or “same gender marriage”. Now, will say two elderly widows be getting married for the supposed benefits (tax or otherwise) without fear of being labeled as lesbians? I’m guessing that it will be a rare occurance, although the irony in seeing the LGBT community apply such a label to said couple would be rich.

    Icy Texan (b2a478)

  25. On the issue of standing for appeal in Proposition 8 and whether or not the state could try to enforce Proposition 8, there is more.

    In Zepeda v. INS, the Ninth Circuit ruled, “A federal court may issue an injunction [only] if it has personal jurisdiction over the parties and subject matter jurisdiction over the claim; it may not attempt to determine the rights of persons not before the court.”

    For example, let us take this position to the case Term Limits Inc., which struck down Amendment 73, Section 3 of the Arkansas Constitution. The underlying injunction would only apply to the plaintiffs named in the original suit, so technically it does not apply to other potential plaintiffs, namely candidates for Congress who want to run for more turns than Amendment 73 allows, and thus it does not stop the state of Arkansas from enforcing Amendment 73 against other people running for Congress. (Of course, as a practical matter, it will not be enforced, since Arkansas knows that any attempt of enforcement would quickly result in an injunction and a summary ruling in favor of the plaintiffs. “We find in favor of the plaintiffs, see Term Limits Inc. v. Thornton, 514 U.S. 779)

    And there was another case, the Proposition 187 case, where the state dropped its appeal to the Ninth Circuit. The original court order invalidating Proposition 187 only applies to enforcement by the defendants against the named plaintiffs. The court order does not stop the state from enforcing this order against others who were not in the suit. While it is possible that state or federal courts would again issue an injunction in favor of these other potential plaintiffs (“We find in favor of the plaintiffs, see Plyler v. Doe, 457 U.S. 202″ ), it will create a new avenue for the state to appeal to the Ninth Circuit or another appeals court, if a state court had made the adverse ruling.

    Michael Ejercito (249c90)

  26. more good stuff, but whelan has more goodness, this time on imperial county’s attempt to join the suit.

    http://www.nationalreview.com/bench-memos/243841/walker-s-gamesmanship-standing-more-imperial-county-ed-whelan

    Aaron Worthing (A.W.) (e7d72e)

  27. Patterico, why don’t you want gays and lesbians to be able to marry? I live in Orange County across the street from a same-sex couple who were married during the window before Prop 8 and their marriage hasn’t hurt anyone. In fact, everyone on the block (of both parties) is happy for them. You’ve always seemed like a guy who despises phony arguments, conservative or liberal, and this anti-same-sex-marriage stuff is based on reasoning that’s full-on B.S. Why is it so important to you to deny these people equality?

    gc (3725a3)

  28. GC, Patterico has said several times on this blog that he supports same-sex marriage, and that he opposed Proposition 8.

    His argument recently appears to me to be entirely about whether it is legitimate for courts to overturn the decision of the people of California, and whether the constitution requires that states recognize same-sex marriages.

    I disagree with him on those issues; but I don’t think it’s fair to impute to him, based on his position on those issues, some other political position which he has quite publically distanced himself from.

    aphrael (e0cdc9)

  29. gc,

    aphrael is correct. I support gay marriage as a policy and want to see it accepted by the electorate.

    I have a new thread up on the 9th Circuit stay, by the way.

    Patterico (3efa1a)

  30. Ah. I stand corrected. Sorry!

    gc (3725a3)

  31. I live in Orange County across the street from a same-sex couple who were married during the window before Prop 8 and their marriage hasn’t hurt anyone. …and this anti-same-sex-marriage stuff is based on reasoning that’s full-on B.S. Why is it so important to you to deny these people equality?
    Comment by gc

    I don’t know if the argument for keeping the definition of marriage the same as it has been for thousands of years is full-on B.S. or not, as no one has bothered to do a serious discussion of some of the concerns that have been raised on this site.

    But I am not going to spend my time and web space repeating the same arguments to be ignored by all of the pro-SSM spokespeople.

    MD in Philly (ff9465)

  32. aphrael is correct. I support gay marriage as a policy and want to see it accepted by the electorate.

    Would you support a constitutional amendment forbidding states and Congress from using gender classifications in marriage statutes?

    Michael Ejercito (249c90)

  33. Marriage is so think so all people do this and enjoy spent our life…

    Free Business Cards (aca201)

  34. No matter how we feel about same-sex marriage, the exegesis for the 2nd and 3rd chapters of Genesis makes us uncomfortable. Why? Because the sin Adam and STEve committed, according to the story, was sodomy–the mystery Saint Augustine almost solved 1600 years ago. (He thought the sin was penile/vaginal sex.) For more information google The First Scandal Adam and Eve. The click, read, and click again.

    Robert Hagedorn (8e14ca)

  35. LOL, The Davinci Code part 2. Brokeback Eden.

    Dustin (b54cdc)


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