Without Kennedy, the Future of Gay Rights Is Fragile

Jun 30, 2018 by


By Kent Greenfield and Adam Winkler   NYTIMES

Mr. Greenfield and Mr. Winkler are law professors.

Celebration outside U.S. Supreme Court following its decision in favor of same-sex marriage in 2015.CreditZach Gibson/The New York Times

In 30 years on the Supreme Court — the past 13 as the swing justice — Justice Anthony Kennedy has been the decisive vote in cases on issues ranging from abortion to affirmative action. Yet his legacy will be defined primarily by his opinions in the area of gay rights, where he wrote the major majority opinions expansively reading the Constitution to protect gay Americans.

Even though these cases have prompted some to call Justice Kennedy the “first gay justice,” his legacy remains unsettled and uncertain. His gay-rights decisions will now face a hostile majority on the court, which is likely to overturn, cut back or nullify at least some of them. And he has made it surprisingly easy.

When Justice Kennedy joined the court in 1988, it was no friend to gays and lesbians. Two years earlier, the court had upheld a Georgia law making it a crime to engage in intimate conduct with a person of the same sex. It dismissed the argument that the Constitution protected gay intimacy as “facetious at best.”

Gay and lesbian citizens found a champion in Justice Kennedy. In 1996, he led the court in overturning a Colorado law barring cities from protecting gays and lesbians from discrimination. Justice Kennedy wrote that laws targeting gay people based in “animus” were unconstitutional. In 2003, he wrote for the court in Lawrence v. Texas, invalidating a law criminalizing same-sex sodomy and overturning the dismissive 1986 decision.

Justice Kennedy also wrote the court’s two most important decisions on same-sex marriage. The court in 2013 struck down a provision of the Defense of Marriage Act denying federal benefits to gay couples married under state law; Mr. Kennedy wrote that same-sex marriages were “worthy of dignity in the community equal with all other marriages.”

In Obergefell v. Hodges, the 2015 decision declaring a constitutional right to same-sex marriage, Justice Kennedy said these relationships were “central to individual dignity and autonomy.” The 5-4 decision made marriage equality the law of the land, but beyond that Justice Kennedy’s opinions were important for giving legitimacy to the love and relationships of people long shamed for those very feelings of intimacy.

Justice Kennedy’s gay-rights legacy, however, is at risk and not just because of the slim vote margins that produced it. Unfortunately that margin is almost certainly gone already. When President Trump’s second nominee takes his seat at the court, probably this fall, a majority of the court is likely to disagree with Justice Kennedy’s expansions of L.G.B.T. rights. And even without overturning his signature cases, Justice Kennedy’s decisions can be narrowed and their implications minimized.

And those who will want to cabin his legacy will be aided by the justice’s own decision-making style. His opinions often hedged, refusing to establish strong rules to protect gays and lesbians going forward. He spent more time in his key opinions discussing the ephemeral than the doctrinal. Same-sex intimacy could not be criminalized because “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.” Marriage was important to ensure people are not left lonely — calling out “only to find no one there.”

Meanwhile, he left much of the important work of judging undone. He muddled whether the marriage cases were based on the Constitution’s promise of equality, its protection of fundamental rights or both. He never adequately explained why, if dignity is protected by the Constitution, why similar dignity rights could not be claimed by those who want to marry more than one person or to marry a cousin. Justice Kennedy simply ignored those obvious slippery-slope problems.

Most important, he balked at declaring that laws discriminating on the basis of sexual orientation should be, like those discriminating on the basis of race or gender, presumed suspect by the courts. Much of constitutional law depends on the “levels of scrutiny.” If a law burdens a fundamental right or discriminates on the basis of race or sex, courts take a hard look to make sure the government has a really good reason for the law. Everyday laws that do not raise such problems are subject to bare “rational basis” review, and courts take only a cursory glance before moving on to the next case.

In the marriage cases, a fair analysis should have depended less on “the universal fear” of loneliness and more on whether the bans were subject to rational-basis review or something stricter. If rational, the bans should survive. If strict, they would fail. Both sides petitioned the court to rule on that question, but Justice Kennedy could not bring himself to decide it.

These doctrinal points Justice Kennedy neglected are not mere niceties. Lower courts need such guidance to determine whether laws biased against L.G.B.T. people should be upheld. Indeed, lower courts have previously read Justice Kennedy’s opaque language in Lawrence to allow states to ban gay adoption and permit governments to fire employees for engaging in private, consensual sexual behavior. The language in the marriage cases could allow similar mistakes.

President Trump’s first Supreme Court appointment, Neil Gorsuch, proved how tenuous Justice Kennedy’s pronouncements can be. Just months after Justice Gorsuch was confirmed, the court held that states cannot refuse to include the names of same-sex parents on children’s birth certificates. Same-sex couples were entitled to the entire “constellation of benefits” associated with marriage. Justice Gorsuch dissented, saying states should be free to list only biological parents. If Justice Gorsuch’s narrow view of Obergefell prevails, gays and lesbians may one day enjoy a right to marry without marriage equality.

Justice Kennedy left unanswered one of the pivotal questions for the future of gay rights: Do businesses have a right to discriminate against gay and lesbian employees or customers if the business owners claim a religious objection? The issue was teed up perfectly this term, but Justice Kennedy ultimately punted, leaving the key questions once again unaddressed. With his resignation he ensured they would be answered by a future, more conservative court more likely to see anti-gay discrimination as perfectly rational.

Back in 2010, after the Supreme Court’s decision in Citizens United overturned one of former Justice Sandra Day O’Connor’s campaign finance opinions, she lamented her retirement, saying, “Gosh, I step away for a couple of years and there’s no telling what’s going to happen.”

It may be Justice Kennedy — and those Americans who’ve found protections and respect in his decisions — with similar regrets in the years to come.

Kent Greenfield is a law professor at Boston College and the author of the forthcoming “Corporations Are People Too (And They Should Act Like It).” Adam Winkler is a law professor at the University of California, Los Angeles, and the author of “We the Corporations: How American Businesses Won Their Civil Rights.”

Leave a Reply

Your email address will not be published.