Tuesday, August 10, 2010

All eyes on Justice Kennedy

In the wake of the Prop8 decision, the case will now be appealed to the 9th circuit Court of Appeals. It will be heard by three judges. It can then be appealed to the 9th circuit "en banc", with 11 of them. Only then does it go to the Supreme Court.

The US Supreme Court is very divided. Four are center-left or liberal. Four are very conservative. The swing is Justice Anthony Kennedy, who flips back and forth between the blocs.

In two previous cases relevant to GLBT rights, Kennedy was on the side of justice. In Romer v. Evans, he wrote the decision to overturn a discriminatory Colorado law that singled out gay people and said they were not entitled to protections.
Its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class that it affects; it lacks a rational relationship to legitimate state interests.
And, in the landmark Lawrence v. Texas, he swept away anti-sodomy laws.
The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government..... times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.
So it is no surprise that many pundits think Judge Kennedy wrote for one audience member. Dahlia Lithwick:
Any way you look at it, today's decision was written for a court of one—Kennedy—the man who has written most eloquently about dignity and freedom and the right to determine one's own humanity. The real triumph of Perry v. Schwarzenegger may be that it talks in the very loftiest terms about matters rooted in logic, science, money, social psychology, and fact.
Nate Silver:
It seems to me that most of the "intangibles" bear upon Justice Kennedy in ways that favor his finding Constitutional protection for same-sex marriage. For one thing, he'll be 75 or 76 by the time the SCOTUS hears this case, and will probably be thinking about his legacy. Given that, in 50 years' time, American society will almost certainly regard the plaintiff's position (the Constitution does not permit discrimination in marriage on the basis of sexual orientation) as the right one, that legacy would be better served by casting the decisive vote in favor of the plaintiffs.
But Kennedy is unpredictable. He might try to split the baby and try to enshrine a "separate but equal" civil union status. Or he might undercut all his previous words, and find against us.

It ain't over by a longshot.


Karen said...

UMM. . .
Isn't it Lawrence v Texsas?

IT said...

Oops, of course. Fixed!

Kevin K said...

Kennedy isn't the only potentially uncertain vote. You may want to consider Ginsburg. She has written that Roe v. Wade is an example of an issue that a Supreme Court decision took out of the political sphere with unforseen long term adverse consequences.

If she means what she says, she would be a possible vote to overrule the district court and to allow the issue of same gender marriages to be resolved by the states.

Kevin K.

IT said...

Perhaps you should read the transcript, Kevin K. This case has nothing in common with Roe, aside from being controversial.

And it's worth remembering that it wasn't until the 1990s that a majority of Americans "approved" of inter-racial marriage--almost 30 years after Loving v. Virginia.

Kevin K said...

Dear IT,

I understand that the cases are fatually different. But the constitutional issue of sweeping away the laws and in many cases nullifying state constitutional provisions, in more than thirty states is similar to the impact of Roe.

Ginsburg's writing has suggested that the Supreme Court should take pains to avoid such sweeping constitutional decisions. She correctly notes that Roe has had zero impact in persuading its opponents that they were wrong. Based on what she has written, she believes that SCOTUS should avoid addressing such issues and allow the states to work this out through the political process whenever possible.

These concerns, if they guide her decision, would mean that she is not a certain vote to affirm the district court. That does not mean that these concerns would require her to overrule the district court.

However, only God knows how SCOTUS will decide any given issue.

Kevin K.

IT said...

But by that logic, Kevin K, how long do you think it would have taken for the pAmerican public to approve of inter-racial marriage?

If it took 25 years for the majority to "come around" with Loving v. Virignia in 1967, we'd still see the south outlawing it.

This case is nothing like Roe-v-Wade. It's a civil rights case. And it's a false equivalence to assume it's thes amse. But it's the current favorite conservative talking point against Teh Gay to rile up the base.

Kevin K said...

Well, Roe was decided by extending the "penumbra" of personal privacy rights protected under the constitution to encompass reproductive issues. I believe that the right to privacy is a "civil right".

However, the point I was making is not that these cases are the same or equivalent. Rather, I am pointing out that Justice Ginsberg's decision on this matter may be influenced by her stated reluctance to have the Court address divisive constitutional issues where an issue is being addressed by the states and is better left to legislative action. Roe, like the present case, invalidated laws nation wide.

On the related issue you raise, I don't know how long it would have taken or how many states, if any, would still outlaw inter-racial marriage if the Loving decision had not been reached. Polls showing what people approve of does not necessarily reflect what people would outlaw. For example, I don't approve of adultery but would not criminalize it.

Justice Ginsberg's writing reflects a subset of thinking which has long driven SCOTUS. That is that the Court's authority rests ultimately on the belief of the people that decisions do not impose the personal moral views of the majority writing a decision on the people. This is obviously, a delicate balancing issue. In a more conservative era (yes they have existed) Justice Holmes argued cogently that majorities on the court were imposing what they believed to be good public policy under the guise that the constitution mandated the result.

Kevin K.