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Signs and Signals from Justice Kennedy



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In Roe v. Wade, the Supreme Court overreached badly, and imposed an unsound understanding of the Constitution’s individual-rights guarantees on the laws and policies of every state.  The justices were invited and encouraged by many to do the same thing in Perry — to rule that the Constitution requires all states to do what some have chosen to do, namely, to change their legal definitions of “marriage” — and they did not.  However, it is clear that they will be asked to do so again, and soon, in a case that is not complicated by jurisdictional and justiciability problems.  When that time and case come, Justice Kennedy’s opinion striking down the challenged provision of the federal Defense of Marriage Act contains more than a few signs and signals that he would rule, in such a case, that same-sex marriage is constitutionally required.  Whatever he might say and think about federalism and about respect for the states’ legislative processes and decisions, his Windsor opinion embraces the uncharitable notion that refusals to revise the legal definition of “marriage” so as to include same-sex unions reflect, in the end, only animus, fear, dislike, and disrespect.  This embrace does not bode well for compromise and accommodation going forward, and its constitutionalization suggests that religious institutions and communities that adhere to more traditional understandings of family, marriage, and sexuality will, over time, be pushed more and more to the margins.   

— Richard Garnett is a professor of law and associate dean at Notre Dame Law School.



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