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March 23, 2013
Lawrence C. Levine: Anthony Kennedy has provided clues to his views on gay rights in two rulings


(March 23 -- By Lawrence C. Levine, Special to The Bee)

All eyes will be on Sacramento's own Justice Anthony M. Kennedy this week when the U.S. Supreme Court hears oral argument in two important cases dealing with issues of fairness and equality under the law. These cases ask whether our Constitution allows same-sex relationships to be treated differently than their opposite-sex counterparts.

To many, these cases provide the Supreme Court the opportunity to do justice in a major civil rights struggle of our time. To others, these cases provide the court the chance to restrain itself from interfering with the ability of the people to preserve so-called "traditional values." Justice Kennedy, with the departure of Justice Sandra Day O'Connor, is now the court's sole swing vote. He may well soon determine the future of gay rights in this country.

The first case, Hollingsworth v. Perry, and the one on which I focus here, asks whether California's voter-approved initiative, known as Proposition 8, unconstitutionally overturned a state Supreme Court decision that had provided gays and lesbians access to the institution of marriage. A divided three-judge panel of the 9th U.S. Circuit Court of Appeals determined that the initiative was unconstitutional because there was no valid basis for California to relegate same-sex couples to domestic partnerships just to limit the institution of marriage to heterosexuals.

The second case, Windsor v. United States, raises the issue of whether our nation's government can treat legally married same-sex couples less favorably than legally married different-sex couples for purposes of federal benefits per Congress' Defense of Marriage Act, or DOMA. Every one of the eight federal courts that has considered this issue has determined that such disparate treatment violates the Fifth Amendment's Equal Protection Clause.

There is no shortage of predictions about the outcome of these cases. Forecasting results of U.S. Supreme Court decisions can be challenging at best, however, as the court has been full of surprises over the years. Remember the last term's decision on Obamacare?

What we do know is that whatever the outcome of the two pending gay rights cases, much depends on what path Justice Kennedy ultimately takes. Thus, looking at his earlier decisions, especially those dealing with the constitutional rights of gays and lesbians, may be instructive.

Justice Kennedy has authored the two most important Supreme Court decisions positively affecting the lives of gays and lesbians in this country. The first was Romer v. Evans, striking down as a violation of equal protection a voter-passed Colorado initiative that prevented government entities from conferring legal protections on gays and lesbians. In the second case, Lawrence v. Texas, the court determined that laws prohibiting private, consensual "sodomy" violated the due process clause's "liberty" guarantee. While these decisions are cited throughout the many legal briefs that have been filed with the court and while they will surely influence the outcome, neither predetermines the result.

With regard to the Proposition 8 challenge, there are various paths the Supreme Court may take. Nonetheless, it is likely that much will depend on the court's determination about the scope of the Romer decision. Justice Kennedy's opinion in the Romer case relied on the determination that the Colorado initiative was unconstitutional because there was no justification for the law other than animus toward gays and lesbians; Colorado's asserted reasons of protecting associational rights and the conservation of resources rang hollow due to the "sheer breadth" of the initiative's reach. As Justice Kennedy put it so well in the Romer decision: "A state cannot deem a class of citizens a stranger to its law."

The Proposition 8 challenge is similar to Romer in many ways. Indeed, the 9th Circuit relied on it exclusively to find, in light of California's near equal treatment of gays and lesbians, the state's asserted reasons for excluding gays and lesbians from the institution of marriage were not persuasive. Thus, if the U.S. Supreme Court decides to resolve the Proposition 8 case on its merits, the court will determine whether the Romer decision permits marriage to be restricted to heterosexuals via initiative in a state that confers broad legal protections to its gay and lesbian citizens.

The 9th Circuit wrote as narrow an opinion as possible in the Hollingsworth case. Rather than deciding that the Constitution requires all states to open marriage to gays and lesbians, the majority limited itself to a California-centric focus, no doubt thinking that this might dissuade the U.S. Supreme Court from hearing the case. Clearly, that strategy did not work.

While the proponents of Proposition 8 rely on the argument that the Romer decision only applies to a far-reaching initiative like that in Colorado, it is likely that the court majority, no doubt led by Justice Kennedy, will find, at a minimum, that California cannot assert any valid reason for preserving the heterosexual marriage monopoly.

The court could do much more, of course. The lawyers challenging Proposition 8, Ted Olson and David Boies, of Bush v. Gore fame, have joined together to argue that all state bans on permitting gays and lesbians to marry are unconstitutional.

The Supreme Court has already decided that the right to marriage is fundamental. The court struck down laws prohibiting incarcerated felons from marrying, for example. The Supreme Court, too, in 1967, determined that laws prohibiting interracial marriage were unconstitutional, striking down the laws of 16 states. So, the court could decide that all laws banning gays and lesbians access to marriage are unconstitutional. But it is not likely that the court will do so.

Justice Kennedy has proved in his earlier opinions that he understands the real harm gays and lesbians suffer by laws that single them out for negative treatment, whether expressly or implied. For example, in the Lawrence decision, Justice Kennedy showed that he fully grasped that laws that criminalize private, consensual sexual conduct can be used to demean and harm gays and lesbians. While expressly avoiding the issue of marriage rights for gays and lesbians, Justice Kennedy noted that the Constitution's liberty interest encompasses "an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct."

Making clear that the Constitution's due process protections evolve over time, Justice Kennedy stated quite beautifully: "Had those who ratified the Due Process Clauses ... known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times could blind us to certain truth and that later generations can see that laws once thought necessary and proper in fact serve only to oppress."

Could laws banning gays and lesbians from the right to marry be the kind of oppressive law of which Justice Kennedy speaks? Absolutely. Will he choose to apply this viewpoint to the marriage issue in the Hollingsworth case? Unlikely.

Justice Kennedy is likely not eager to jump into the major debate about the propriety of same-sex marriage unless absolutely necessary. And, under the approach taken by the 9th Circuit that relies heavily on California's largely favorable treatment of same-sex relationships, he will not need to do so. Thus, a narrow opinion striking down Proposition 8 is most likely.

A future case not presenting a narrow path to resolution may be on the horizon, however. And when it does reach the court, Justice Kennedy may have the opportunity to embrace his broad and powerful language of the Lawrence decision to ensure "liberty and justice for all."

Lawrence C. Levine is a law professor at University of the Pacific McGeorge School of Law.

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