Law professor Brian Gray argues in this morning’s L.A. Times that California’s Proposition 8 may violate the federal Constitution — and that we could see a ruling to that effect some day, written by one Anthony Kennedy.
Is he right? The answer depends on whether you believe Justices Kennedy and O’Connor, on one hand — or Justice Scalia, on the other.
If you’re inclined to believe Justice Scalia, then Professor Gray may well be right: the U.S. Supreme Court might one day mandate gay marriage.
I’m not sure why Gray relies on the old case of Romer v. Evans, which declined to overrule Bowers v. Hardwick, rather than Lawrence v. Texas, which did. I think Gray is drawing a parallel between Proposition 8 and the measure invalidated in Romer, because each involved a statewide ballot measure to place in a state’s constitution a provision disfavoring gays. But whether Proposition 8 would be struck down depends much more on Lawrence than on Romer, because Lawrence went much further to defend the rights of gays.
So would the Court find Proposition 8 unconstitutional? It depends on who you believe. If you believe the justices in the Lawrence majority, they might not. If you believe Justice Scalia (in dissent), they definitely will.
In Lawrence, Justice Kennedy took care to say that the case’s holding would not necessarily extend to gay marriage — although Kennedy put this elliptically, using the following language:
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.
In other words, it does not involve gay marriage.
Justice O’Connor, in her concurrence, was 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.
In dissent, Justice Scalia said that the principles articulated in the majority opinion would necessarily mean approval of gay marriage down the road:
At the end of its opinion–after having laid waste the foundations of our rational-basis jurisprudence–the Court says that the present case “does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” Ante, at 17. Do not believe it. More illuminating than this bald, unreasoned disclaimer is the progression of thought displayed by an earlier passage in the Court’s opinion, which notes the constitutional protections afforded to “personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education,” and then declares that “[p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.” Ante, at 13 (emphasis added). Today’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. If moral disapprobation of homosexual conduct is “no legitimate state interest” for purposes of proscribing that conduct, ante, at 18; and if, as the Court coos (casting aside all pretense of neutrality), “[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring,” ante, at 6; what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “[t]he liberty protected by the Constitution,” ibid.? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry. This case “does not involve” the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court. Many will hope that, as the Court comfortingly assures us, this is so.
Count me among those in that hopeful crowd. I have said that I am a supporter of gay marriage, but I have also said I do not believe that goal should be accomplished through illegitimate judicial legislation.
Tell Tony Kennedy to stay the hell out of this issue.