The DOMA Decision and the Inscrutable Anthony Kennedy

The fallout from the Supreme Court’s Defense of Marriage Act decision (U.S. v. Windsor) rapidly took shape just days later, beginning with decidedly LGBT-friendly federal court decisions in Michigan on same-sex adoption, domestic-partner benefits, and a threat to the state marriage amendment, all with supporting citations to the Windsor decision.

Then activist groups such as the ACLU and Lambda Legal announced new lawsuits challenging existing marriage laws in Pennsylvania, Virginia, and North Carolina, all encouraged and motivated by the pregnant-with-promise 5-4 decision in Windsor, written by none other than the Court’s perennial swing voter, Justice Anthony Kennedy. That opinion has been thoroughly scrutinized and criticized by others with better constitutional credentials than mine, so I will avoid adding my voice to the chorus.

Still, it is worth examining Justice Kennedy’s mindset and writing in the years leading up to his majority opinion in Windsor. I’d like to consider a few of his “famous” social issues opinions prior to Windsor through the eyes of Kennedy’s judicial opposite in these types of cases, the inimitable Justice Antonin Scalia.

Kennedy was once described as the “human jump ball” by a veteran Supreme Court reporter. As unpredictable as a basketball game tip-off, Kennedy’s reputation as the Court’s swing voter is well earned. But his votes on certain issues are fairly predictable—sometimes even what we might label “conservative.” At the same time, he frustrates conservatives by writing “liberal” decisions on many social issues, especially those dealing with sexuality. And when he writes a majority opinion for the Court, he is famous for baffling his fellow justices (particularly Justice Scalia) as well as lower court judges with his legal reasoning.

In the famous 1992 abortion case Planned Parenthood v. Casey, for example, Kennedy upheld the constitutional “right to abortion” from Roe v. Wade using such passages as this:

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.

In his dissent in Casey, Scalia criticized Kennedy’s “liberty” passage:

The issue is whether [abortion] is a liberty protected by the Constitution of the United States. I am sure it is not. I reach that conclusion not because of anything so exalted as my views concerning the “concept of existence, of meaning, of the universe, and of the mystery of human life.” Rather, I reach it for the same reason I reach the conclusion that bigamy is not constitutionally protected—because of two simple facts: (1) the Constitution says absolutely nothing about it, and (2) the longstanding traditions of American society have permitted it to be legally proscribed.

Note that Scalia’s view of liberty is grounded in the Constitution and our own history, not airy philosophical notions that can mean anything Kennedy wants them to mean.

The next mile-marker in Kennedy’s journey of philosophical self-discovery came in the Court’s 1996 Romer v. Evans decision. His target there was Colorado’s voter-approved constitutional amendment prohibiting state and local governments from granting special legal rights on the basis of sexual orientation. Kennedy’s opinion for the majority confidently concluded that the Colorado amendment exhibited a “bare desire to harm” homosexuals and seemed “inexplicable by anything except animus.”

Scalia would again have none of Kennedy’s rhetoric or assumptions:

The Court has mistaken a Kulturkampf for a fit of spite. The constitutional amendment before us here is not the manifestation of a “bare . . . desire to harm” homosexu­als, but is rather a modest attempt by seemingly tolerant Coloradans to preserve traditional sexual mores against the efforts of a politically powerful minority to revise those mores through use of the laws.

Then came 2003 and Lawrence v. Texas, a decision that struck down Texas’s sodomy statute. In the opening paragraph of his majority opinion, Kennedy waxed grandiloquent on what he thought the case was about: “The instant case involves liberty of the person both in its spatial and more transcendent dimensions.” Vintage Kennedy-speak.

He also quoted his “At the heart of liberty…” language from Casey, which Scalia in his dissent pointedly dubbed the “sweet mystery of life” passage, alluding to the sappy operetta number made famous in the 1930s by Nelson Eddy and Jeanette MacDonald.

Kennedy went on in the Lawrence decision to assure his fellow justices and America that his opinion had absolutely nothing to do with promoting or furthering the cause of same-sex marriage. Once again, Scalia called a foul:

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.” Do not believe it….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.

Ironically, some liberal courts across the country accepted Scalia’s cynical assessment of Kennedy’s opinion as the actual meaning of Lawrence as applied to the question of marriage, rather than heeding Kennedy’s disclaimer. Later that same year, Massachusetts’s highest state court cited the Lawrence decision in support of its holding that same-sex marriage was mandated under the Commonwealth’s own constitution. Between Kennedy’s 2003 Lawrence opinion and his 2013 opinion in Windsor, 12 states plus the District of Columbia legalized same-sex marriage, several of those via court decisions that cited Lawrence as precedent for tossing away state laws regarding marriage.

In Windsor, Kennedy is once again all over the map with his legal reasoning. He mentions federalism (states’ rights), equal protection, and “liberty” as partial bases for his opinion, without ever drilling down and examining the judicial tests to be applied for each of those, as judges are expected to do. Most important for the future of marriage, however, is Kennedy’s condemnation of the Congress and president who passed DOMA in 1996:

The avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States. The history of DOMA’s enactment and its own text demonstrate that interference with the equal dignity of same-sex marriages, a dignity conferred by the States in the exercise of their sovereign power, was more than an incidental effect of the federal statute. It was its essence.

Scalia was taken aback by such an unsupported and startling conclusion:

The majority concludes that the only motive for this Act was the “bare . . . desire to harm a politically unpopular group.” Bear in mind that the object of this condemnation is not the legislature of some once-Confederate Southern state (familiar objects of the Court’s scorn, see, e.g., Edwards v. Aguillard, 482 U.S. 578 (1987)), but our respected coordinate branches, the Con­gress and Presidency of the United States. Laying such a charge against them should require the most extraordi­nary evidence, and I would have thought that every attempt would be made to indulge a more anodyne expla­nation for the statute.

To be sure, Kennedy managed in his Windsor opinion to avoid declaring that same-sex marriage is a constitutional “right” that must be imposed on all 50 states. Once again, however, Scalia predicts only a temporary bump in the road for the Court’s cabal of social engineers:

When the Court declared a constitutional right to homosexual sodomy [in Lawrence], we were assured that the case had nothing, nothing at all to do with “whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” Now we are told that DOMA is invalid because it “demeans the couple, whose moral and sexual choices the Constitution protects,” —with an accompanying citation of Lawrence. It takes real cheek for today’s majority to assure us, as it is going out the door, that a constitutional requirement to give formal recognition to same-sex marriage is not at issue here—when what has preceded that assurance is a lecture on how superior the majority’s moral judgment in favor of same-sex marriage is to the Congress’s hateful moral judgment against it. I promise you this: The only thing that will “confine” the Court’s holding is its sense of what it can get away with.

We’ve already seen two lower court federal judges wield Kennedy’s Windsor opinion as a club against the state of Michigan, and other lawsuits seeking to overturn state marriage statutes and amendments have been filed or promised, based on Windsor. And that’s just the beginning of what looks like an upcoming flood of litigation against the states. All thanks to Justice Kennedy and the four very quiet (for once) liberal justices who are content to mold the country as they see fit and let Kennedy take the fall (or credit, depending on your ideology).

Yet again, however, the center court match was between Kennedy and Scalia, and the battle of wits, ideology, and judicial philosophy was riveting.

Two justices. Two very different ways of approaching constitutional issues. And, oddly enough, both appointed by President Reagan. Liberals like to point to Kennedy and remind us that he was appointed by a Republican, so whatever social engineering he is guilty of is somehow conservatives’ own fault. And to a certain extent the criticism is deserved.

But only to a certain extent. Reagan’s first choice for the seat vacated by Justice Lewis Powell had been noted conservative Robert Bork, a distinguished federal judge, former Solicitor General and Yale law professor. Given his conservative bona fides, Bork’s nomination sparked a vitriolic response from the Left, and Democratic senators, led by Ted Kennedy, served up a humiliating defeat for the nomination, shocking the White House in the process. (Scalia had been confirmed 98-0 only the year before). In a response that has unfortunately shaped the Court’s decisions ever since, Reagan offered the much more palatable (to the Left, that is) Anthony Kennedy, who was then confirmed 97-0.

Perhaps, then, when conservative criticism of Harriet Miers’s nomination by President George W. Bush in 2005 forced her to withdraw, it signaled a new era of accountability—at least on the conservative side of the political spectrum—based on the “buyer’s remorse” of dealing with Republican-appointed disappointments of the past.

Those other four votes joining Kennedy’s Windsor opinion—from Justices Ginsburg, Breyer, Sotomayor and Kagan—are on the Court today because of the presidential elections in 1992 and 2008. Elections have consequences. And in this case, the unfortunate consequence is that marriage is under attack today, and it is likely to remain so.