Another Perspective

Justice Number Five

Gay marriage and Anthony Kennedy's big-sky libertarianism.

By 3.27.13

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The Supreme Court oral arguments over Proposition 8, which banned gay marriage in California and was subsequently struck down by a circuit court, are over. Today begins the hearing over the Defense of Marriage Act. But in the meantime, it’s time for the commentariat to engage in its ritual Kennedy whispering, during which we all light candles in our offices and attempt to divine the thoughts of Justice Anthony Kennedy, the Supreme Court’s perennial swing vote.

Our own Kyle Peterson, who attended the oral arguments yesterday, dubbed this Kennedyology, which he cautioned was “an art, not a science.” Kennedy, for his part, behaved rather enigmatically during the hearing, making statements that encouraged both gay marriage advocates and opponents. Twice he wondered if the court should hear the case at all.

Ever since the scatter-shooting Sandra Day O’Connor stepped down, Kennedy has been the most unpredictable justice on the Supreme Court. This has earned him the ire of partisans on both sides of the aisle. He cast the deciding vote in Planned Parenthood v. Casey to uphold Roe v. Wade, and spent years as a constant thorn in the side of the Bush Administration. Then last year he not only voted to strike down the entire Obamacare law, he proudly read the decision from the bench. Subsequent accounts detailed a heroic lobbying campaign by Kennedy to convince John Roberts to change his mind.

Time Magazine recently went fishing for Kennedy’s judicial philosophy. It found a quiet, thoughtful justice with strong roots to his hometown of Sacramento; an old-fashioned pragmatist with a dramatic flair.

David Boaz and Damon Root have argued that Kennedy is generally a libertarian. There’s some truth to this, although it’s not a liberty that many conservatives would recognize. It’s not particularly ordered. It’s not tethered to American traditions. In fact, it’s not constrained to America at all. (Kennedy proudly cites international law in many of his decisions.) It’s an abstract, universal, soaring sense of liberty. In his Planned Parenthood v. Casey opinion, Kennedy the dramatist wrote, “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.”

This vague aurora of freedom has led to an interesting assortment of votes from Kennedy. For gun rights in Washington, DC. Against anti-sodomy laws. For free speech in Citizens United. Against the death penalty for juveniles. Against government race-based preferences. For abortion rights. And as despicable as that pro-abortion vote was, he justified it on grounds of liberty, rather than the absurd “right to privacy” that the Court originally invented.

Kennedy isn’t always consistent. As Boaz and Root point out, he voted in favor of the government’s marijuana ban in the Gonzales v. Raich case and eminent domain in Kelo v. City of New London. But Kennedy’s deliberations still seem guided by a vague libertarian current.

This is why Kennedy’s question over the Prop 8 case’s legitimacy is a bit surprising. Kennedy often prefers grand, whimsical statements of ungrounded liberty to narrow decisions. And yet he implied during oral arguments that the Court sanctioning gay marriage nationwide would take the country into “uncharted waters.” For Kennedy to vote to toss out the case, which would keep gay marriage legal in California and uphold the status quo, seems at odds with much of his legal thought.

Kennedy did make other statements yesterday that are more in line with his activist approach. At one point he empathized with the 40,000 children being raised by same-sex couples in California. “They want their parents to have full recognition and status,” he said, and declared that the “voice of those children” should be heard.

As Sahil Kapur has documented, Kennedy also has a long history of supporting gay rights from the bench. In both Romer v. Evans, which struck down a Colorado amendment denying homosexuals protection under the law, and Lawrence v. Texas, which struck down Texas’s sodomy ban, it was Kennedy who wrote the majority opinion.

Here’s Kennedy in Lawrence:

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. It suffices for us to acknowledge that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. (Emphasis added.)

Now he’ll have to decide: Do gay couples deserve that formal recognition not just in the law, but also under the auspices of marriage? His prior opinions suggest that they do. His statements from yesterday suggest he could go either way.

So once again, we’re pulled between different outcomes for Kennedy, and left with the uneasy feeling that he could still surprise us entirely. Libertarianism aside, that fog in our crystal balls is probably his most consistent feature. There’s a logic to Kennedy's jurisprudence. But that doesn’t mean he won’t leave us guessing.

Photo: UPI

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About the Author

Matt Purple is The American Spectator's assistant managing editor.