Notes From Babel

More Reasons Why Kennedy Might Not Take the Bait in Perry v. Schwarzenegger

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In September, Daily Caller ran my op-ed, “Why Kennedy Might Not Take the Bait in Perry v. Schwarzenegger.” Since it was an op-ed, however, I had to cut a good deal from the piece.  In light of the oral arguments today before the Ninth Circuit in the Prop 8 case, I am posting the full original piece below.

Also, it occurs to me that the “pairriage” thought experiment I devised addresses the panelists’ concerns that the Prop 8 advocates’ attorney had a little trouble responding to. ***

As Californians’ right to define one of their most sacred institutions wends its way up to the Supreme Court in Perry v. Schwarzenegger, all eyes will be on Justice Kennedy.  Having authored the Court’s only two opinions expressly favoring the rights of homosexuals, and finding himself the perennial tie-breaker flanked by four reliable conservatives and four reliable liberals, Kennedy will almost certainly author the opinion that decides whether a state may continue to adhere to the traditional definition of marriage as one man and one woman.  Yet, with tensions high on both sides of the debate, few can get a read on which way Kennedy is likely to vote.

However, Kennedy did leave some clues in his two previous opinions concerning gay rights.  These clues suggest that, quite possibly, he may decline, for a third time, to confer any sweeping new constitutional rights or status upon homosexuals.

Although Kennedy has authored the only two Supreme Court opinions concerning homosexual rights—both times in favor—Kennedy’s career with the Court has been marked by so many conflicting rationales that many commentators are left with the nagging suspicion that Kennedy is often more concerned with results than legal principle.  Or, to put it more charitably, that Kennedy regards constitutional law as much more nuanced and inscrutable than his colleagues.

Whether or not Justice Kennedy is sufficiently concerned with constitutional principle, however, he left enough clues in his previous opinions to suggest that, more likely than not, he will again decline to confer any sweeping new constitutional rights or status upon homosexuals.

First, Kennedy’s two earlier opinions in favor of homosexuals have been very cautiously and narrowly written.  In both his 1996 opinion in Romer v. Evans and his 2003 opinion in Lawrence v. Texas, he declined to announce a “fundamental right” to engage in homosexual sex, which would have required states to demonstrate that any laws burdening homosexuals are narrowly tailored to achieve a compelling government interest.

To have declared a “fundamental right” to engage in homosexual sex would have been the most straight-forward and predictable rationale for reaching the ultimate results in those cases.  The fact that Kennedy eschewed this approach and instead advanced a more labored and unlikely rationale strongly suggests he is not interested in taking up arms in this culture war.  In other words, Kennedy probably intended to limit Romer and Lawrence to their facts.

Second, following the principle Kennedy announced in Romer and Lawrence would lead to severe unintended consequences.  In Romer, Colorado voters had popularly voted to pass an initiative in response to state and local government policies granting preferential treatment to homosexuals on the basis of sexual orientation.  The practice had become common throughout the relatively liberal state in the preceding years.  The initiative would have reversed this practice and removed these special preferences, meaning if homosexuals wanted favors from the government unavailable to their fellow citizens, they would have to amend the constitution.

Kennedy, however, determined that Coloradans’ democratic countermeasures in leveling the playing field in their state were “inexplicable by anything but animus” toward homosexuals.  In particularly bizarre  logic, even for a post 1930s Court, Kennedy held that forcing any minority group to resort to constitutional amendment to achieve special preferences—“electoral-procedural discrimination,” as Scalia termed it in dissent—deprived that group the equal right to get special favors from the government.  Thus, Kennedy held, Coloradans’ popularly enacted amendment violated the Equal Protection Clause.

As Scalia noted in his dissent, and after noting the various legislative successes achieved throughout Colorado in favor of special treatment for homosexuals, “homosexuals are as entitled to use the legal system for reinforcement of their moral sentiments as is the rest of society. But they are subject to being countered by lawful, democratic countermeasures as well.”

Scalia’s dissent challenged that, applied faithfully, this principle would work the end of laws prohibiting laws directed at any other unsavory conduct prohibited throughout the states.  As he would later describe in his dissent in Lawrence:

One of the benefits of leaving regulation of this matter to the people rather than to the courts is that the people, unlike judges, need not carry things to their logical conclusion. . . . 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. . . .

The rationale is simple enough:  if Kennedy’s reference to “animus” means simply “moral disapproval,” this spells the end for prohibitions on suicide, euthanasia, animal cruelty, bestiality, prostitution, polygamy, adult incest, public nudity, profanity, stem cell research, human cloning, and so on.  Importantly, however, Kennedy apparently did not concede that “animus” means “moral disapproval”—in fact, he did not once refer to “morals” in his majority opinion in Romer.

He did refer to it seven years later, however, in his opinion in Lawrence v. Texas.  In that case, striking down a Texas law criminalizing homosexual sodomy, Kennedy again announced a very narrow rule that a state may not criminalize “private sexual conduct.”  Again, Scalia warned of the slippery slope on which Kennedy was leading the Court.

Thus, conservatives are justifiably concerned by the implications of Romer and Lawrence.  The Court twice has suggested that all morals legislation may now be unconstitutional.  This is cause for grave concern to all Americans other than the hardiest of libertarians.  In fact, already the Fundamentalist Church of Jesus Christ of Latter Day Saints has announced its intent to challenge Texas’s bigamy laws, a challenge that will undoubtedly rely on the logical extension of the principle announced in Romer and Lawrence.

Yet, reassurance springs from the same source as the concern.  That is, Kennedy’s demonstrated inconsistency in the application of principle suggests there is little reason to presume he will adhere to the tenet that judges, unlike democratic majorities, must “carry things to their logical conclusion.”   On the one hand, Scalia excoriated Kennedy for offering up an empty guarantee that Lawrence did not extend to the question of traditional marriage.  As Scalia put it, the holding in Lawrence “‘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.”  On the other hand, there is little reason to doubt that Kennedy would take Scalia up on this challenge.  After all, Kennedy is just the man to enforce empty guarantees—particularly one of his own making.

Indeed, Kennedy himself repeatedly indicated that he was not prepared to extend the rule of Lawrence—whether or not compelled by principle and logic—beyond laws criminalizing homosexual conduct.  In other words, Kennedy has indicated that whatever the implications of his expressed rule, he is intent on leaving marriage out of 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.

(Emphasis added.)

Romer, however, shares some further factual similarities with Perry.  Both cases involved popularly enacted constitutional amendments that worked to the disadvantage of homosexuals, and both cases involved findings of “animus” against the people who enacted the amendments.  However, Romer’s holding was conspicuously limited to “unprecedented” laws based on “animus.”  Again, Kennedy’s opinion did not mention morals as the reason for the Colorado constitutional amendment, but instead referred to the people’s “desire to harm” homosexuals.  This seems far afield from mere moral disapproval of homosexual conduct, or a desire to maintain the traditional definition of marriage.  And importantly, the court in Perry did not explicitly find that the people of California harbored any “animus” toward homosexuals.

Prop 8 certainly is not an “unprecedented” law that would bring it under the scope of the somewhat peculiar initiative in Romer, which concerned the use of preferences in state and local government hiring and contracting decisions.  Prop 8 simply deals with a familiar and long-recognized social institution, establishing the traditional definition that had persisted for decades before the California Supreme Court abridged it in 2008.

Thus, unless Kennedy were to go Judge Walker one better and find that the people of California demonstrated “animus” and “a desire to harm” homosexuals in enacting Prop 8, and that restoring the traditional definition of marriage in law is “unprecedented,” Romer does not lend much support to Perry.

Kennedy has also expressed an intention in other opinions to stay out of other culture wars.  For example, Kennedy joined the majority in Washington v. Glucksberg, which observed that “the States are currently engaged in serious, thoughtful examinations of physician-assisted suicide and other similar issues,” and thus declined to “place the matter outside the arena of public debate and legislative action.”  Kennedy also joined the majority’s express rejection of Justice Souter’s suggestion that the Court ought to strike down any “arbitrary imposition” or “purposeless restraints”—a standard very similar to the one Kennedy held applicable to criminal laws in Lawrence.  Instead, Kennedy agreed that the appropriate test for finding enforceable liberty interests under the Fourteenth Amendment must “rein in the subjective elements that are necessarily present in due-process judicial review,” and must be “carefully refined by concrete examples involving fundamental rights found to be deeply rooted in our legal tradition.”

Of course, reliable predictions are impossible when it comes to Justice Kennedy.  Sometimes he refrains from the culture wars; sometimes he engages.  Kennedy’s breadcrumbs in Romer and Lawrence suggest that, at least as of 2003, he was not ready to redefine marriage on behalf of all Americans.  On the other hand, Kennedy’s notorious wandering eye for international affairs may tempt him to keep step with European countries.  Nonetheless, there’s good reason to believe Kennedy will decline, for a third time, the invitation to effect such drastic changes both to American culture and constitutional law.


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