Justice Kennedy’s jurisprudence evidences a deep concern for the dignity of same-sex couples. That’s why he should not vote to create a right to same-sex marriage. This sounds counterintuitive, but it’s true, for reasons I shall explain.
On October 6, the Supreme Court declined to review any of the seven same-sex-marriage cases sent to it. This momentarily dashed the hopes of activists and advocates that the court would recognize a constitutional right to same-sex marriage. A few weeks later, the Sixth Circuit upheld four states’ traditional marriage laws. This established a conflict between the Sixth Circuit and those appellate courts that have struck down such laws, a situation virtually demanding the Supreme Court’s attention.
Some court watchers expect the court to rule five to four in favor of the new right, with Justice Kennedy casting the deciding vote. After all, Justice Kennedy has authored opinions establishing the right “for two persons of the same sex to engage in certain intimate sexual conduct,” overturning a Colorado law that allegedly discriminated on the basis of sexual orientation, and striking down the Defense of Marriage Act (DOMA). On the surface, this pattern suggests that Justice Kennedy will indeed cast the deciding vote in favor of creating same-sex marriage. However, if one digs a little deeper, there is reason to reconsider that expectation.
Justice Kennedy’s opinions emphasize “a constitutional order in which all persons are treated with fairness and equal dignity,” especially in cases dealing with intimate relations. In Lawrence v. Texas, he voted to decriminalize sodomy in order to protect “the dignity of the persons charged” and out of concern for their “dignity as free persons.” In Planned Parenthood v. Casey, he joined, and possibly wrote, an opinion defending the alleged right to abortion as “central to personal dignity and autonomy.” And in the most striking and relevant example, he invoked dignity ten times while requiring the federal government to recognize state-sanctioned same-sex marriages in United States v. Windsor.
At first blush, this pattern seems to support the notion that Justice Kennedy will vote to establish same-sex marriage in the name of protecting the dignity of same-sex couples. However, that logic misses an important distinction between the cases discussed above and the same-sex-marriage cases. In Lawrence, Casey, and Windsor, Justice Kennedy perceived the law itself as injuring the litigants’ dignity. In those cases, Kennedy could restore their dignity by simply removing that impediment. The same-sex-marriage cases are distinct from those prior cases in a manner elucidated by Kennedy’s opinion in Windsor.
In that case, Justice Kennedy indicated that “the State’s decision to give [same-sex couples] the right to marry conferred upon them a dignity and status of immense import.” He also stated: “When the State used its historic and essential authority to define the marital relation [to include same-sex marriage], its role and its power in making the decision enhanced the recognition, dignity, and protection of the class in their own community.” He explained that “by authorizing same-sex unions and same-sex marriages, New York sought to give further protection and dignity to that bond.” Finally, he claimed that the federal government injured same-sex couples by interfering with the state’s decision, which “reflects both the community’s considered perspective on the historical roots of the institution of marriage and its evolving understanding of the meaning of equality.”
In each of these passages, the dignity Justice Kennedy praises is generated by a community’s volitional decision to legally recognize and celebrate same-sex relationships. That is what makes the same-sex-marriage cases distinct from Lawrence, Casey, and Windsor. In the same-sex-marriage cases, he cannot restore anyone’s dignity by striking down a law and removing an impediment. The process by which couples obtain the right to same-sex marriage matters. In order to be meaningful, access to the institution of marriage needs to be freely offered rather than judicially mandated.
No one can say for certain where the ongoing public discussion over marriage will end up, although the trends do seem to favor proponents of same-sex marriage. The one thing we know for sure is that if the Supreme Court cuts off the discussion by imposing same-sex marriage nationwide, it would rob same-sex couples of the opportunity to persuade their friends and neighbors to willingly redefine marriage. In doing so, the court would prevent those couples from ever achieving the status Justice Kennedy highlighted in Windsor.
In another context, Justice Kennedy noted that “a democracy has the capacity — and the duty — to learn from its past mistakes; to discover and confront persisting biases; and by respectful, rationale deliberation to rise above those flaws and injustices. That process is impeded, not advanced, by court decrees based on the proposition that the public cannot have the requisite repose to discuss certain issues.” Justice Kennedy can be remembered as the decisive vote for creating same-sex marriage or as the man who gave same-sex couples the opportunity to argue for the dignity of their relationships. It is unlikely that he can be remembered as both.
— Howard Slugh is an attorney in Washington, D.C.