Politics & Policy

Justice Kennedy and Marriage: A Guide for the Perplexed


By his own logic, Supreme Court Justice Anthony Kennedy should lead the court’s majority in upholding individual states’ laws against same-sex marriage.

In the four conjoined cases on the subject set for oral argument April 28, the high court is asked not whether same-sex marriage is good policy. It is instead asked if such marriage is a national, constitutionally protected right, one so fundamentally interwoven in our nation’s fabric of protections that no state law can refuse to recognize it.

Kennedy’s most recent decision regarding marriage, the 2013 case of U.S. v. Windsor, contained two notions seemingly in tension with each other. The first is that the “personhood and dignity” of homosexual couples can be seen as being diminished by laws limiting the status of “marriage” to the traditional male–female variety — and diminished in a way forbidden by various of the Constitution’s protections of liberty and equality.

The second notion particularly emphasizes “the significance of state responsibilities for the definition and regulation of marriage dat[ing] to the Nation’s beginning.” Again and again, Kennedy emphasized variations on the same theme: Marriage is not a matter to be defined by the federal government for the states, but one to be defined by each state for all within each state’s jurisdiction.

Many observers consider it a foregone conclusion that Kennedy’s decision in the April 28 cases will favor the same-sex-marriage side of the debate.

Reading Kennedy’s paeans to “personhood and dignity,” and reviewing his long history of rulings that consistently expanded the rights of homosexuals at every opportunity, many observers consider it a foregone conclusion that his decision in the April 28 cases will favor the same-sex-marriage side of the debate. They think it obvious that Kennedy now will join the court’s four uber-liberal justices in declaring, once and for all, that homosexual marriage is a right protected, for all Americans everywhere, by the U.S. Constitution.

Yet the full text of his Windsor decision (invalidating the federal Defense of Marriage Act, or DOMA) lends far more ammunition to the other side. In it, Kennedy so repeatedly emphasizes state authority on marriage, both definitional and regulatory, that there seems no intellectually honest way for him now to invalidate state laws that, yes, define and regulate marriage. Indeed, even Kennedy’s hymns to personal dignity, at least in Windsor, were sung only in the context of the power of individual states to recognize such dignity despite DOMA’s alleged determination to trample it. In other words, Kennedy painted the dignity not as something conferring a freestanding right to a particular definition and practice of marriage, but only as something a state might choose (or, by inference, choose not) to confer as a recognized privilege.

Kennedy stresses, for instance, that “the class to which DOMA directs its restrictions and restraints are those persons who are joined in same-sex marriages made lawful by the state.” Note that it is not all persons joined in same-sex marriages, but only those “made lawful by the state” with jurisdiction over them. Likewise: “It imposes a disability on the class by refusing to acknowledge a status the state finds to be dignified and proper.” He doesn’t write that the status is inherently proper, but only that it has been made so by the state.

Finally, Kennedy writes this as his concluding substantive sentence: “This opinion and its holding are confined to those lawful marriages.”

Earlier in the decision, in his exposition of how the state of New York came to give legal status to same-sex marriages there, Kennedy emphasized the “statewide deliberative process that enabled its citizens to discuss and weight arguments for and against same-sex marriage.” It is that deliberative process — one to which, in several other sorts of cases, Kennedy has fervently paid homage — that, according to Windsor, provides the marriages a legitimacy that he concludes was harmed by DOMA. (Note: Others persuasively argue that DOMA did not harm the states’ recognition of those marriages; but for purposes of this essay, we’ll adopt Kennedy’s point of view, so as to interpret the upcoming cases according to his own logic.)

Largely because the states provide for that process of deliberative democracy, Kennedy noted approvingly the high court’s recognition of states’ authority in regulating marriage:

“Regulation of domestic relations” is “an area that has long been regarded as a virtually exclusive province of the States.” The recognition of civil marriages is central to state domestic relations law applicable to its residents and citizens. . . . The definition of marriage is the foundation of the State’s broader authority to regulate the subject of domestic relations with respect to the “protection of offspring, property interests, and the enforcement of marital responsibilities.”

That’s not just a dutiful but unenthusiastic nod to traditional American practices reserving those powers to the states; it’s a rousing endorsement of those practices. And Kennedy continued in that vein for more than 1,000 additional words — even citing, approvingly, an earlier high-court decision that “there is no federal law of domestic relations.”

Clearly, Kennedy’s logic in Windsor creates a stupendously high burden to overcome if he is to turn around and eviscerate that “foundation of the State’s broader authority.” Indeed, it is an almost unsquare-able circle.

So how, then, is Kennedy to accommodate his poetic bursts in favor of “personhood and dignity” (Windsor), of “liberty of the person both in its spatial and its more transcendent dimensions” (Lawrence v. Texas, 2003), and of “one’s own concept . . . of the mystery of human life” (Planned Parenthood v. Casey, 1992)?

As it happens, there is a way to accommodate the famous “sweet mystery of life” ideal within a decision in favor of state traditional-marriage laws — but no way (as far as I can figure) to accommodate his support for state authority in domestic-affairs law within a decision that would strike down state laws reserving “marriage” for opposite-sex couples.

As Kennedy wrote in Windsor, the idea that same-sex couples deserve the “dignity” of a legally recognized marriage is “a new perspective, a new insight.” This is because “marriage between a man and a woman no doubt had been thought of by most people as essential to the very definition of that term and to its role and function throughout the history of civilization.” Yet, as the Supreme Court repeatedly has asserted, recognition of a right as one constitutionally guaranteed through “substantive due process” can occur only if that right is “deeply rooted in this nation’s history and tradition.” Clearly, by Kennedy’s own description, it is the opposite interpretation of marriage, the traditional one, that by deeply rooted tradition has been “essential . . . throughout the history of civilization.”

Logically speaking, Kennedy cannot abide by his longstanding respect for deliberative, democratic processes, or by his acknowledgment that it is only the traditional definition of marriage that has for millennia been recognized as essential, or by his lengthy exposition of the roots of state authority over matters marital, and now decide to throw out the state laws that defend traditional marriage.

But it would be consistent with Kennedy’s respect for “dignity” and “new insights” for him to decide that where such new insights have taken hold, those insights should also be protected. That’s exactly what he did in Windsor, where he wrote with obvious approval that the state of New York had followed a deliberative process to reach its new insight that the state should recognize same-sex marriages.

Indeed, with public opinion moving in that direction nationwide, he surely appreciates that those insights appear to gain legitimacy in large part because they emerge out of republican processes. He also should appreciate that a court that short-circuits those processes is a court that only embitters and hardens the opposition, guaranteeing further discord that can only be more vociferous and more long-lasting.

Meanwhile, for discussion’s sake, let’s look at one other factor that might be a bit idiosyncratic but that is consonant with the underpinnings of the Founders’ political-constitutional theories: the constitutional amendments long loved by conservatives but seldom invoked for practical use — namely, the Ninth and Tenth. Even some conservative constitutional scholars have treated these two amendments as almost practical nullities (or ink blots), or at best as a “rule of construction.”

While I do not join some libertarian-conservatives as seeing the Ninth Amendment, particularly, as a nearly open-ended invitation for discovering new constitutional rights, I do think that these amendments are more than mere rules of construction. Rightly understood, the two amendments should be read together. The Ninth (specifying that the people do retain rights in addition to those specifically enumerated in the Constitution) and the Tenth (emphasizing that Congress does not enjoy powers other than ones specifically enumerated) work jointly to limit government in general and the national government especially.

Read together, these amendments provide people with the opportunity, within their individual states, to recognize “rights” not universally recognized across the nation. Unless those rights violate the national Constitution, Congress cannot prevent states from recognizing them for the purpose of state law.

Imagine this as an example. After the infamous Kelo decision that limited property rights against the ravages of eminent domain, a number of states acted to establish greater limits on eminent domain, and thus greater property rights, than the Supreme Court said the national Constitution recognized. We should take the Ninth and Tenth Amendments together to mean that Congress can’t trample those state-recognized rights. In other words, Congress could make no statute specifically giving local governments the power to expropriate land for tax-revenue-boosting private development, against their state’s post-Kelo property-protecting provisions.

Some might find this interpretation of those amendments a bit fanciful — and it certainly wouldn’t come into play, in a way the Supreme Court could apply, very often. In practice, it would be mostly an interpretive guide for the courts, rather than a specific club with which to beat back federal overreach. But it is entirely consistent with the spirit and the letter of both amendments, and it would, in certain circumstances, help set a framework for judicial decision-making in specific cases.

In Windsor, Justice Kennedy said, in effect, that while same-sex marriage is not a right deeply rooted in the nation’s traditions or practices, it has been recognized as a right by a number of states.

Same-sex marriage is exactly such a subject, especially for the interpretive outlook so far advanced by Justice Kennedy. In Windsor, Justice Kennedy said, in effect, that while same-sex marriage is not a right deeply rooted in the nation’s traditions or practices, it has been recognized as a right by a number of states — and that Congress, in DOMA, violated the authority of the states and the prerogative of the people to recognize it as such. (Again, some may argue that DOMA did no such thing, but we’re analyzing Kennedy’s reasoning, not arguing with it.) In sum, although Kennedy did not cite the Ninth and Tenth Amendments, his decision effectuated the very interpretation of those amendments offered above.

Here’s the rub, though: That same interpretation of the two nebulous amendments should also add to the argument against the Supreme Court’s suddenly declaring that same-sex marriage is a national constitutional right. This reading of the amendments allows states to put their “new insights” into action. It respects the deliberative, democratic process and the states’ traditional authority to define marriage, while providing a bulwark of protection against efforts to keep the states from doing so. Likewise, it reserves to the states and the people the prerogative not to provide protections for alleged rights on which national democratic processes — meaning, in particular, the Article V amendment power, which describes the process by which we may alter the Constitution — have not yet forged consensus.

In this way, Kennedy can leave room for dignity and personhood to grow, without trampling the states’ traditional powers to which he paid such homage in Windsor. In fact, he could use this analytic framework to split the baby, as it were, in tomorrow’s cases.

In deciding to review the four cases, the Supreme Court limited itself to two questions: 1) Does the 14th Amendment require a state to license a marriage between two people of the same sex? 2) Does the 14th Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out of state?

Using the reasoning I suggest, Kennedy could quite cogently answer no to the first question and yes to the second. (I myself would answer no to the second as well, based on the “public policy exception.”) He could reason that once something has been recognized in any state not only in public policy but also as a fundamental right, then those rights (unlike ordinary state-legislative acts) cannot be abridged by another state — even if the other state still has the authority to refuse to issue its own marriage licenses to the couple in question. This way, he would uphold his paean to new insights, developing over time, about the sweet mystery of life.

What Kennedy cannot do — to repeat — is square his lengthy exposition of state authority to define marriage with the circle of same-sex marriage as a supposedly national constitutional right. It would be a rather feckless Supreme Court justice who would issue a decision one year that so diametrically traduces his own constitutional reasoning from a ruling just two years earlier. It could also spark a backlash against the Supreme Court itself. Such a backlash would probably not occur if he issued a decision less sweeping, more nuanced, and more apt to entice the public, rather than force-feed it, to appreciate and honor human dignity through legitimate republican deliberation.


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