Bench Memos

Did Justice Kennedy ‘Schuette Down’ the Same-Sex Marriage ‘Inevitability’ Narrative?

Did Justice Anthony Kennedy just signal in Tuesday’s Schuette v. BAMN decision that he might vote to uphold state constitutional amendments defining marriage as between one man and one woman? That seemed very doubtful last June when Justice Kennedy authored the majority opinion striking down Section 3 of the federal Defense of Marriage Act (federal DOMA) in U.S. v. Windsor. Many assumed after Windsor that it was “inevitable” for the Supreme Court to create a constitutional right to compel states to recognize same-sex marriage.

However, Justice Kennedy’s strong endorsement of voters deciding controversial social issues through their state constitution’s amendment process in Schuette raises the question of whether he is a sure vote to strike down state constitutional provisions defining marriage as one man and one woman. In Schuette, Justice Kennedy and five other justices upheld a voter-approved Michigan state constitutional amendment prohibiting state universities and public schools from granting “preferential treatment” to individuals based on their race, sex, ethnicity or national origin in operating the schools. Activists unsuccessfully challenged the Michigan amendment using equal protection arguments similar to those used to attack the various state marriage amendments.

Many view Justice Kennedy as the swing vote for a federal constitutional right to redefine marriage, so his views in Schuette on state constitutional amendments are important.  Justice Kennedy wrote at length how the Constitution permits state voters to determine difficult and divisive moral issues permeated with “rancor,” and that courts should stay out of these conflicts:

This case is not about how the debate about racial preferences should be resolved. It is about who may resolve it. There is no authority in the Constitution of the United States or in this Court’s precedents for the Judiciary to set aside Michigan laws that commit this policy determination to the voters . . . Deliberative debate on sensitive issues such as racial preferences all too often may shade into rancor. But that does not justify removing certain court-determined issues from the voters’ reach. Democracy does not presume that some subjects are either too divisive or too profound for public debate.

These passages and more from the opinion conflict significantly with the decisions of many federal district courts interpreting Windsor as directing them to strike down state marriage amendments, which they have done with zeal. Schuette indicates that the lower courts may have been reading Windsor too broadly, because Schuette reinforces what Justice Kennedy wrote in Windsor — that in our federalist system, state governments have the legal authority to affirm marriage.

Schuette also shows that Justice Kennedy may have a more complex and nuanced view about “animus” motivating voters to approve state constitutional amendments.  He characterized positively the deliberations by voters to approve the Michigan amendment.  Justice Kennedy wrote that Michigan voters approved the amendment based on thoughtful consideration of the evidence and arguments, and not because of rank prejudice (which marriage advocates have been saying for years about the motivation of voters who approved marriage amendments in most states in the union):

It is demeaning to the democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on decent and rational grounds.  The process of public discourse and political debate should not be foreclosed even if there is a risk that during a public campaign, there will be those on both sides who seek to use racial division and discord to their own political advantage.  An informed public can, and must rise above this.

Will these new issues raised by Schuette appear in the marriage cases now pending at several federal appeals courts?  They should, and we may know soon. The Tenth Circuit in Denver just heard appeals of federal district court decisions that struck down the marriage amendments in Utah and Oklahoma.  The Fourth Circuit in Richmond set to hear oral arguments May 13 on the constitutionality of Virginia’s marriage amendment.

I would not be surprised to see supplemental briefing in those cases on how the Supreme Court’s decision in Schuette affects the constitutionality of the state marriage amendments.  After Schuette, a Supreme Court decree commanding states to redefine marriage looks a bit less inevitable.

— Jordan Lorence is senior counsel for Alliance Defending Freedom in its Washington, D.C., office. ADF is defending both the Oklahoma and Virginia marriage amendments at the 10th and 4th federal circuit appeals courts, respectively.

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