The Kennedy Question
I outline some reasons to be skeptical about whether Kennedy would be willing to cast a fifth vote to hold bans on same-sex marriage unconstitutional here. At a minimum, there’s no reason to simply assume that “[t]here are 5 votes for a constitutional right to same-sex marriage.” The typically overrated assertions of America’s most overrated justice notwithstanding, it wouldn’t be remotely difficult for Kennedy to distinguish Lawrence and Perry if he wanted to do so. It might be different if Lawrence had been based on equal protection, but the fact that it was a privacy case gives him an easy exit route. All he would have to do is point to the status quo on abortion, in which the state cannot ban abortion but can exclude abortion from medical funding, although the central purpose of the Hyde Amendment is to obstruct the exercise of a constitutional right. And there are other important contextual differences between this case and the major liberal (or half-liberal) rulings Kennedy has joined: upholding Perry would have a much larger policy impact and have significantly less public support. It’s possible that Kennedy could provide a fifth vote to uphold Perry, and it was shrewd of Walker to cite Kennedy as much as he could, but on the basis of what we know I would definitely bet against it.
One thing I didn’t address is the possibility that there could be some way of upholding Prop 8 without creating a national right to same-sex marriage (in a manner similar to the way Romer ruled Colorado’s Amendment 2 unconstitutional without explicitly overruling Bowers.) I’m very skeptical about this, in part because it’s hard to see any way of invalidating Prop 8 that wouldn’t apply to other same-sex marriage bans (whether or not the Court makes that explicit.) One intriguing possibility suggested by a commenter is that Prop 8 could be considered irrational because California already grants all of the material benefits of marriage, so refusing to apply the title of marriage to same-sex unions is just raw discrimination that the Court ruled unconstitutional in Romer. I don’t know if Kennedy would buy it, but it’s a clever argument. But the problem is that — like conservative attempts to have the insurance mandate ruled unconstitutional — it would be very much a “be careful what you wish for” outcome. Because it would create a perverse incentive for states that don’t want to recognize same-sex marriage rights to keep their marriage regimes as inequitable as possible in order to avoid a challenge under Perry/Schwarzenegger, it would probably make the policy status quo worse in the short term. It’s possible that Kennedy (or even Roberts) could write such an opinion, but I wouldn’t count that as a victory for same-sex marriage rights, although at least it would make future challenges to marriage discrimination easier to mount.
How long do we have until this reaches SCOTUS? Is the 2012 election going to be all about whether we should add a “no queers” amendment to the constitution?
Prop 8 could be considered irrational because California already grants all of the material benefits of marriage, so refusing to apply the title of marriage to same-sex unions is just raw discrimination
I made a similar suggestion over at the Volokhblog:
What strikes me after reading the opinion is that it’s just really, really difficult to come up with a rational basis vs. gay marriage, when gays are already legally protected, allowed to cohabit, and can enter domestic partnerships.
At that point, it’s like saying they can have ice cream sundaes like the straight folks, but NOT with a cherry on top, by god, because SOME things are SACRED.
Whether the argument is *sound* may matter a bit less than whether it gives the Court a way to affirm without mandating gay marriage in all 50 states. Never underestimate the allure of splitting the baby.
Of course, whatever happens, the Court won’t have to grant cert, and as previously noted, the Four Horsemen will have to gamble on whether Kennedy might get all squishy on them, unless he makes his position quite clear to them beforehand.
Whether the argument is *sound* may matter a bit less than whether it gives the Court a way to affirm without mandating gay marriage in all 50 states.
Oh, I definitely agree with this.
At that point, it’s like saying they can have ice cream sundaes like the straight folks, but NOT with a cherry on top, by god, because SOME things are SACRED.
Yes. It’s not that the courts are eager to ‘legislate from the bench’ on this, but given the rights that gay couples already do have in many states, it gets harder to deny them marriage without recourse to arguments based in religion, tradition, and/or bigotry.
Remember, Prop. 8 overturned a California Supreme Court decision based on the Equal Protection Clause of the California Constitution. Also remember that Judge Vaughn’s decision had an extensive factual record concerning about the purpose/motivations behind Prop. 8.
The Court could hold that the adoption of Prop. 8 violated the federal Constitution’s Equal Protection clause (a quasi-procedural violation) without holding that the federal Equal Protection clause itself requires marriage equality. The California Supreme Court’s decision interpreting the California Constitution would then govern, so marriage equality would be restored.
Such a holding would be (1) based on the factual record (the best way to achieve a narrow holding), (2) would not create a federal constitutional right to marriage equality, (3) permit the California marriage equality ruling stand without jeopardizing marriage equality laws in other states, and (4) promote federalism as state law would determine marriage equality. While I would prefer a holding that the federal Equal Protection clause requires marriage equality, this narrower holding would be acceptable and also, positively, would invalidate attempts to use the initiative process to screw disfavored groups.
I would definitely bet against it.
Alright, Bub, let’s make this interesting: if you’re right, then I’ll buy you a pair of Mets tickets. But if you’re wrong, you have to gay-marry me.
My prediction: Kennedy plans to reject gay marriage, but then Kagan sweet-talks him into approving it, and Scott feels very, very conflicted.
lol … some bet!
I have the uneasy feeling that he’ll consider it going too far too soon
I agree, which prompted my comment on your earlier post yesterday. So what does a justice like Anthony Kennedy do when he clearly is in favor of gay rights (based on Romer and Lawrence) but is troubled by the idea of striking down 30+ state constitutional provisions, a bunch of other state statutes and a federal law (DOMA)?
What that justice does is to indulge his or her inner (Felix) Frankfurter and look for a way to avoid the sweeping constitutional ruling but (unlike Frankfurter) also be sure NOT to set the preferred cause back decades or even deal it a fatal blow. If in the process Antonin Scalia bursts a blood vessel at the intellectual dishonesty of said justice (see his reaction to O’Connor’s perceived perfidy in Casey, in my book that’s a feature, not a bug. And Kennedy has been willing to stare Scalia down before, if not as often as we on the left would like, so I suspect he agrees with me on this point.
How can Kennedy justify such a ruling? Who cares? There are probably ten thousand possible ways for him to rationalize it in his own mind. Are they intellectually deep and meaningful? Once again, who cares? The end result is what matters — anything other than an outright rejection of marriage equality by a majority of the court is a win, as I see it.
So how to present it? Boies and Olson are as good as it gets, but let a humble state level advocate offer his thoughts anyway. The key is for the advocates (1) to make the strongest argument for a sweeping ruling, but at the same time (2) make it clear that there are ways (Romer, for example, or the marriage in all but name fails equal protection argument, which I also like), and if Kennedy, not prepared to play the role of Justice Blackmun after Roe, decides that he’s just not quite ready to go there NOW, but is swayed by the argument, he will surely find a way to keep the train on the track towards ultimate victory. How he justifies that result is ultimately irrelevant, both legally and politically.
Jonathan Shurberg
How can Kennedy justify such a ruling? Who cares?
As I say I don’t think this is quite true. A narrow equal protection ruling based on, say, the fact that there are already 18K same-sex marriages in CA would be OK, while a ruling based on the fact that CA already provides the material benefits would be, while not as bad as entrenching the status quo, pretty bad.
My reference to “such a ruling,” while not clear, was a ruling AFFIRMING Judge Walker. Your notion that Kennedy would rule that because CA already provides domestic partnerships would, of necessity I think, be a basis for vacating or reversing the District Court, not affirming it. I don’t think such a ruling fits within my vision of Kennedy’s thinking.
But I can’t agree that a ruling that civil unions are enough is “pretty bad”. Would not such a ruling have to be premised, in some form or fashion, on the idea that equal protection demands at least what California provides? Would not such a ruling have 50 state implications? I think the answer to both questions would have to be yes.
Is that a great policy outcome? No, by no means. Civil unions are not marriage, and I understand that completely, but gays and lesbians across the country will get a big step up from where they are right now, which is constitutionally barred from any status as couples whatsoever.
Over time, when civilization doesn’t end, states which already have equal marriage laws will be seen as models, the legal distinction between civil unions and marriage will not be worth the fight for state legislatures, and marriage equality will happen.
Is this a perfect scenario? No. Does it consign at least a big chunk of yet another generation of gays and lesbians to second-class citizenship in some states? Yes. Will there be holdouts? Absolutely (but a future lawsuit will topple the few remaining redoubts of bigotry).
Here’s the way I see it. There’s a big difference between the status quo for the next 25 years and civil unions for the same period of time. Would marriage be better? Sure, and so would the proverbial pony. But a puppy’s nice too. Not as nice as the pony, assuredly.
Look, all this hinges on if the assumptions about Kennedy’s views are right. If he’s ultimately in favor of gay rights, and won’t sign on to an opinion rejecting marriage outright), the above scenario is a worst-case outcome of the current litigation. A constitutional right to marriage at best, a “California only” outcome in the middle, and some kind of constitutional right short of marriage at worst. I still say “California only” is the most likely, because if Kennedy is as pro-gay as we think he is, he will understand that for gays and lesbians, civil unions are viewed as the moral equivalent of separate but equal. And who wants to be remembered as the author of a modern-day Plessy v. Ferguson?
Jonathan Shurberg
I’m optimistic about Kennedy. There have been two significant gay rights decisions in the past decade or so, and he wrote both of them, favoring the good guys in more general language than was necessary. this is on issue where he’s been concistent to date. I supsect it’s one of two reasons: (1) he wants to be remembered in history as a forward thinker on something, and it has to be something that won’t hurt corporate interests and won’t particularly help poor people or criminals, so this is a good issue; and/or (2) perhaps someone in his life is personally affected. He has six adult children and some adult grandchildren by now.
I expecte he will write an opinion affirmign the District court. Roberts may go along, perhaps on narrower grounds.
*Snort*
If Roberts sees that things are going in favor of marriage, especially if he thinks that Kennedy may be leaning toward a sweeping pronouncement finding a constitutional right to marry, I can definitely see Roberts trying to persuade Kennedy to a more modest outcome, and agreeing to go along with it in an effort to prevent a broader ruling. This fits with Roberts’ personality and style.
double snort
Roberts would never side with the little guy against state encroachment, unless the “little guy” is the name of a corporation
except involving a teen felon sentenced to life in prison?
Last night on Charlie Rose Kenji Yoshino (who obviously loved the decision but has all the same concerns we do) suggested an alternative off-ramp: that the existence of the 18,000 married same-sex couples in CA presents a CA-only equal protection issue and that 9CA might go that way to accomplish the same thing (giving Kennedy a way to split the baby). Is that more, less, equally likely to succeed as the challenge that all benefits are granted under CA’s DP law and only the name is withheld (all assuming that no one is willing to just uphold Walker’s expansive ruling)? Do either or both of these scenarios require 9CA and/or SCOTUS to tell CA what its own state constitution REALLY means? If so, as I recall they generally won’t do that. Would also just note that either of these would give Kennedy the opportunity to create a CA-specific mini-precedent for his own state but not force everyone to live with it. I have a weird feeling that might make him feel better about crawling out on the limb. Thoughts?
[...] Scott Lemieux [...]
Schwarzenegger and his Attorney General have urged Walker not to stay the ruling; they want same-sex marriages to go ahead immediately.
If they get their way, and thousands of same-sex couples start marrying in California again, would that put pressure on the SC to uphold Walker’s ruling?
I dunno, but it sure would be a shot in the arm to florists and photographers.
Since this is about homosexual rights, and Kennedy wrote the two main rulings protecting them, citing him is not only some big strategy move or anything.
I remain in the belief there is some reasonable shot at a narrow ruling. The ruling repeatedly cites facts and decisions of law respecting CA practice, and the conclusion cites CA, not “fifty states” or even “nine states, Guam and the N. Mariana Islands.”
This is kinda like the 10 Commandment cases split in two. It is not like the long held practices of states but a recent move to target homosexuals. It is a blatant one. Take NY. NY now recognizes out of state same sex marriages. But, it does not have a state-wide domestic partnership law like CA. Few states do. And, of those, which ones recently passed a Prop 8 type measure?
The fear is that a ruling that targets just CA will encourage anti-homosexual policies since too much equality w/o total equality will encourage some sort of pincer movement.
What state actually willing to go as far as CA (where sexual orientation still — except as to marriage — is ruled on a strict scrutiny basis) but would change their mind out of fear that they would go a bit further?
And, even there, would it have recent animus, like scary ads about children, as CA does? Yeah, the ruling might not satisfy some on principle. Romer didn’t either (didn’t even cite Bowers).
I have to say I find dubious the idea that the Supreme Court will support the California ruling. There is the obvious problem that if Lawrence had been decided now, there would be four votes against it. If you believe that the state can imprison people for homosexual acts you obviously don’t believe that the constitution allows homosexual marriage. It’s also odd to argue that you a man has a constitutional right to marry another man, when I believe he doesn’t have a right to marry his cousin or a close in law. As a Canadian my knowlege of American marriage law is limited, but I believe that states have complimentary incest taboos. Although you can marry your cousin in some states and an in-law in others, you don’t have a constitutional right to marry either in all states. I think that really weakens the gay marriage argument.
Quite frankly I would be surprised if Roberts couldn’t browbeat Kennedy with a whole host of arguments. Personally I think supporters of gay marriage dismiss the procreative argument too readily. But why can’t Roberts argue that procreation is a key purpose of marriage, homosexual couples don’t have children, ergo it’s not discrimination to deny them it? To claim that it is discrimination is a surreptious attempt to redefine marriage, and judicial restraint show prevent us from doing so.
There are counterarguments to this, but how convincing are they? Yes, not all heterosexual couples have children. But most do. We assume all kinds of noble reasons for first amemdment jurisprudence, even though much debate is dominated by partisan hacks, conformist windbags or sleazy sensationalists. Surely procreation is more important to marriage than libertarian principle is to many first amendment defendants. That children and family are essential to both the institution of marriage and to the legal privileges it gives is hardly a stretch. Aren’t more egalitarian community property laws based on the idea that a women’s weaker earnings are balanced by her larger role in pregnancy and child care?
Another arguments presents itself. Roberts can get around the evidence on good homosexual parenting very simply. Children have the right to the love and care of both their parents. Whatever their other virtues, homosexuals can’t provide this. To protect their most vulnerable citizens the state has a legitimate interest in linking the biological facts of paternity and maternity to the social institution of parenthood. Marriage is a reasonable way of achieving this.
In the Ontario decision that led to legalizing gay marriage, the Court offered insemination, surrogacy and adoption to complicate the link between heterosexual marriage and childraising. It shouldn’t be difficult for Roberts to critize this. These three aspects are privileges based on law. How can one convert them to a constitutional right? Moreover it’s not even clear that surrogacy contracts should be enforceable. If you can’t rent a vagina for ten minutes, how can you rent a uterus for nine months?
The analogy with miscegenation is weak in a number of ways. First off, I don’t believe there was ever a time when they were applied in every state, let alone in Western civilization as a whole. Secondly, miscegenation laws were obviously formed to enforce slavery and to deny common citizenship. It cannot be said that their opponents sought to redefine marriage. Thirdly, children will still be born regardless of laws against miscegenation, so the law merely caused undue pain and hardship. Fourth, it’s important to note that Loving was handed down after Congress had passed both the Civil Rights Act and the Voting Rights Act and the presidential candidate who opposed the first had been ignomiously defeated. Then the court was just giving a helpful push in a direction politicians had already chosen, but which endemic prejudice made difficult to make. By contrast, few politicians are willing to publicly support gay marriage, and it’s disingenous to pass the buck to the judiciary to take the brunt.
Ah, the procreative argument. That is the foundation of the incest taboo in marriage; absent the possibility of procreation, there would be no defensible reason to prevent cousin marriages. Thus, in comparing cousin marriages to same-sex one runs up on the rocks.
Children have the right to the love and care of both their parents.
A charming sentiment, but one frequently ignored completely in divorce cases, sentencing decisions, the distribution of welfare and relief funds and immigration/citizenship cases. Like most “won’t someone think of the children” arguments, it gets trotted out when convenient, then ignored entirely the rest of the time. I’d love to see the Supremes try to make the case that same-sex marriage is wrong because Heather has two mommies and no daddy, but sending Citizen Consuela’s mother to El Salvador is right and just, because illegal alien anchor baby gargle hiss spit.
[...] toward supporting same-sex marriage. Scott Lemieux still thinks Kennedy will probably come down against a right to same-sex marriage. Vikram Amar argues that the decisive battle may happen not in the [...]
One thing a lot of commentators have not written much about when discussing how the Supreme Court may decide this issue is Bishop v. Oklahoma .
In Bishop, plaintiffs had filed constitutional challenges against Oklahoma’s ban on same-sex marriage and the federal DOMA. The Oklahoma ban “prohibits giving the benefits of marriage to people who are not married. It provides that same sex marriages in other states are not valid in this state.” In this respect, Oklahoma’s ban (Question 711) goes further than Proposition 8. There had been some procedural issues, specifically on whether or not certain government officials could be sued with regards to the complaints, but the complaint against Question 711 looks due for a ruling on the merits.
If this case is before the Tenth Circuit by the time the Perry v. Schwarzenegger case clears the Ninth Circuit, the Supreme Court is likely to issue a certiorari before judgment, since the legal issues are similar. Alternately, the Supreme Court may re-list Perry until the Tenth Circuit issues a merits ruling on the Bishop appeal.
How would the breadth of Oklahoma’s Question 711 influence Justice Kennedy.
Such reasoning, of course, will create a perverse deterrent from providing ice cream sundaes.
One thing I’d prefer to say is always that before acquiring more computer memory, look into the machine in to which it will be installed. If the machine is actually running Windows XP, for instance, a memory threshold is 3.25GB. Installing a lot more than this would basically constitute any waste. Be sure that one’s mother board can handle this upgrade quantity, as well. Good blog post.