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Justice Kennedy’s Choice

The Supreme Court is hearing oral arguments in the same-sex marriage case this morning. I was startled to hear this from Justice Anthony Kennedy. From the NYT’s liveblogging of the hearing:

Justice Anthony M. Kennedy, who is widely expected to provide the swing vote in favor of same-sex marriage, noted during his questioning of Ms. Bonauto that the traditional definition of marriage has existed “for millennia,” according to The Wall Street Journal. He asked whether the court should say “we know better.”

One might expect that question to come from one of the more conservative justices, but probing questions like this do not necessarily indicate how he — or other justices — will vote.


Justice Anthony M. Kennedy, considered the likely swing vote on the case, was one of the first to weigh in with skepticism as the advocates for gay marriage made their case.

At just after 10:07, he said the definition of marriage “has been with us for millennia. It’s very difficult for the court to say, ‘Oh, we know better.’ ” The comment suggested that for Justice Kennedy the long history of marriage could be a key factor in how he decides.

Justice Antonin Scalia echoed Justice Kennedy’s concerns about the weight of history and the relatively recent developments that have pushed for gay marriage. At about halfway through Ms. Bonauto’s argument on behalf of same-sex marriage, Justice Scalia asked whether she knew of “any society prior to the Netherlands in 2001 that permitted same sex marriages?” He repeated Justice Kennedy’s suggestion that the definition of marriage as between a man and a woman has been in effect “for millennia.”

One more from the Times:

For some of the justices — especially the more conservative ones — the definition of marriage, and what might happen to it over time, appears to be at the heart of the case. At the very start of the arguments, Chief Justice Roberts said that he had looked up definitions of marriage and had been unable to find one written before a dozen years ago that didn’t define it as between a man and a woman. “If you succeed, that definition will not be operable,” the chief justice said. “You are not seeking to join the institution. You are seeking to change the institution.”

That is plainly true. It is surprising, though, to hear Kennedy, at least in his early questioning, come from a more conservative, restrained point of view. The reason everybody thinks he will go pro-LGBT here is because of his majority opinion in Planned Parenthood vs. Casey, and in Lawrence vs. Texas. In both instances, Kennedy argued from an atomistic, individualistic point of view, e.g., liberty means nothing if it doesn’t mean the right to decide right and wrong for yourself, and to be free from the state’s interference in your sex life. The moral and legal incoherence of this point of view has been remarked on before, and I’m not going to bring it up in this space. Nevertheless, it is hard to see the justice who took the progressive side in Casey and Lawrence, and in Windsor, striking down DOMA, failing to do so in this matter.

But Kennedy may surprise. He voted with the pro-life majority in Gonzales v. Carhart, which upheld a state ban on partial birth abortion. A friend who is intimately familiar with Kennedy’s thinking tells me that for all his apparent contradictions, Kennedy truly is a libertarian, and he cares about religious liberty.

One wonders what role Kennedy’s friendship with his legal mentor, the late Gordon Schaber, will play in his decision. The AP reports on how Schaber, who was gay, influenced young Kennedy. Excerpt:

So what are the roots of Kennedy’s views?

Childhood friend Joseph Genshlea said the issue never came up at Stanford University, where they attended college together in the 1950s, or the Sacramento neighborhood in which both grew up and later raised their own families.

“When we were in college, we didn’t even know there was a closet,” Genshlea said. “I don’t have an answer to it except that he’s a very bright guy and he certainly has thought through the issue.”

Another longtime friend, former California Gov. Pete Wilson, said Kennedy always has evaluated people as individuals, not as members of a group. Kennedy, he said, sees everyone “based on their merits.”

Justice Ruth Bader Ginsburg suggested in an interview last summer that one reason for changes in public opinion in favor of same-sex marriage was that, as gay Americans became more comfortable talking about the topic, people learned that they had gay friends and relatives, “people you have tremendous respect for.” She was describing what sociologists call the contact theory, the idea that the majority group’s interactions with a minority will break down stereotypes and enhance acceptance of the minority group.

Helen Knowles, the author of a book about Kennedy’s jurisprudence, said she doesn’t place too much emphasis on this theory.

“Having said that, I have difficulty believing that Kennedy’s friendship with Gordon Schaber didn’t affect his views,” said Knowles, a professor of government at Skidmore College in Saratoga Springs, New York. Her book is “The Tie Goes to Freedom: Justice Anthony M. Kennedy on Liberty.”

Prof. Schaber testified at Kennedy’s confirmation hearing (go to page 456 of this official transcript). Given how personal narrative has been so instrumental in making conservatives change their mind — or rather, their hearts, and then their minds — on gay marriage and gay rights, I find it impossible to believe that Kennedy will not follow his heart on this one, and be faithful to his past jurisprudence.

On the other hand, it is very hard to find in the Constitution a right to gay marriage. (That would imply that the decision to offer marriage to same-sex couples is a political one.) And if SCOTUS does find one hiding under a penumbra, it will be a momentous decision, one that enshrines in constitutional law, the DNA of the republic’s legal code, a radically different belief in the nature of marriage, and of man.

This is what is weighing on Kennedy’s mind.

Let us suppose that against the odds, Justice Kennedy sides with court conservatives and says that there is not constitutional right to same-sex marriage. What do you suppose would happen then? A friend e-mails this morning saying that the outrage among the elites in society — media, legal, corporate, academic — would be uncontainable, and we would see a scorched-earth campaign to re-educate the conservative masses, and impose sanctions on them that would dwarf anything we’ve seen until now. Kennedy, of course, would be vilified in the history books as the latter-day equivalent to Chief Justice Roger Taney, who wrote the majority opinion against African-Americans in the infamous Dred Scott case. Nothing Kennedy has done to advance gay rights prior to this decision would count for anything.

I don’t think it will come to this. I think Kennedy will rule as everybody expects him to rule. But if he does not, and if his decision is guided by what is morally and legally correct, we are going to see a riot of American elites against traditionalists, and it is going to be extremely ugly. I think Kennedy must know this too. He’s got the mob of law schools, newsrooms, and faculties breathing down his neck, and the memory of his beloved mentor before him. I hope he finds the wherewithal to stiffen his spine and clear his mind.

about the author

Rod Dreher is a senior editor at The American Conservative. A veteran of three decades of magazine and newspaper journalism, he has also written three New York Times bestsellers—Live Not By Lies, The Benedict Option, and The Little Way of Ruthie Lemingas well as Crunchy Cons and How Dante Can Save Your Life. Dreher lives in Baton Rouge, La.

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