Kennedy will decide gay marriage cases, but how?

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Few things were certain after the Supreme Court's first foray into the issue of gay marriage earlier this week—except that conservative-leaning swing vote Justice Anthony Kennedy will control the outcome.

The four liberal and the four conservative justices appeared to split right down the middle on how (and whether) to decide the constitutionality of both Proposition 8 and the Defense of Marriage Act. Kennedy—who in the past authored the court's two most important opinions affirming gay rights—seemed to be on the fence in both cases.

The most likely scenario: Kennedy will form a coalition with the liberals to strike down Proposition 8 and DOMA without substantially addressing the plaintiffs' claims that gays and lesbians should be allowed to marry and have those marriages treated equally to opposite-sex marriages by the law.

The hope for a "nationwide ruling on same-sex marriage was clearly dashed on Tuesday," said Doug NeJaime, a professor at Loyola Law School.

Gay rights advocates had pinned their hopes on the 76-year-old Sacramento native and Ronald Reagan appointee, based on his striking down of state anti-sodomy laws in Lawrence v. Texas (2003) and a Colorado statute that prohibited local governments from passing anti-discrimination laws protecting gay people in Romer v. Evans (1996).

But in both cases, Kennedy appeared unsympathetic to the argument that same-sex couples have a fundamental right to marriage. He repeatedly noted that same-sex unions are historically new and that there's not much "sociological" evidence about them and their offspring. He did, however, express sympathy for the children of same-sex couples, saying he believed their voices were "important" and that they were harmed because their parents were not allowed to wed.

Kennedy did seem far more open to striking down both anti-gay marriage laws on procedural grounds. While this would have a much more limited effect than a broader decision, it would still be a victory for the gay rights movement.

In the Proposition 8 case about California's 2008 voter-approved gay marriage ban, Kennedy dropped a bombshell early into oral arguments when he wondered aloud whether the Supreme Court should have ever agreed to hear the case in the first place. (At least four justices must vote to take on a case, which happens privately in the judges' chambers.)

"I just wonder if—if the case was properly granted," Kennedy said to attorney Ted Olson, who was arguing for the ban to be struck down. Kennedy later asked attorney Charles Cooper, who was arguing on behalf of Proposition 8, why the Supreme Court should hear the case at all.

Justice Sonia Sotomayor took up Kennedy's line of argument, asking Cooper why they couldn't let the issue of same-sex marriage "percolate" longer before making such a major decision.

Kennedy appears to be weighing dismissing the case altogether, and Sotomayor's questioning suggests he may be able to get the four liberal justices to join him. If they dismiss the case, the lower-court decision stands allowing gay marriage in California, but no other state would be affected. If that's the route the court goes, it's possible Kennedy would write the opinion without substantially addressing the plaintiffs' claims that they have the same right to marry as people of another sexual orientation.

Interestingly, Kennedy's comments in Wednesday's DOMA oral arguments also suggest he may take a way out that doesn't require him to rule on the substance of whether the law discriminates against gay couples. DOMA defines marriage at the federal level as only between opposite-sex couples, denying federal benefits and obligations to same-sex married couples in the nine states that allow it. Kennedy appeared very intrigued by the argument that DOMA improperly intrudes into the states' domain of marriage, characterizing the law as potentially in "conflict" with states' rights.

Chief Justice John Roberts also pursued this line of questioning, repeatedly asking the attorneys arguing against DOMA if they believed it was a violation of federalism. Neither attorney would take the bait, however, instead sticking with the reasoning that DOMA discriminates against same-sex couples.

"The chief justice got both parties to the case to admit that they don't think there's a federalism issue here," said Chapman University law professor John Eastman. Eastman is the chairman of the anti-gay marriage group the National Organization for Marriage. "I don't know whether that persuaded Justice Kennedy that he was going down the wrong line."

NeJaime said it's possible Kennedy could write an opinion striking down DOMA on federalist grounds, while the four liberal justices joined in a concurring opinion that struck it down as discriminatory. (If Kennedy sides with the liberals, he could assign the opinion to himself because he is the most senior justice of that group.) If so, Kennedy's decision could say nothing substantial about gay rights, merely sticking to the argument that it's an overreach of federal power.

"You could end up with two decisions from Kennedy that basically allow same-sex marriage in some ways but do nothing on the substance," NeJaime said.