Towards the end of his landmark majority opinion in Lawrence v. Texas (2003), where the Supreme Court struck down that state's anti-sodomy law as a violation of individual liberty, Justice Anthony Kennedy inserted a reference to the looming legal battle over gay marriage. The present case, Kennedy wrote, "does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter."
"Do not believe it," snapped Justice Antonin Scalia in an angry dissent that accused the majority of having "largely signed on to the so-called homosexual agenda." In Scalia's view, Lawrence threw the door wide open for gay marriage. "Today's opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned."
Was Scalia correct? We may soon find out. On December 6 a three-judge panel of the federal 9th Circuit Court of Appeals will hear oral arguments in the case of Perry v. Schwarzenegger. At issue is California's Proposition 8, the controversial voter initiative which added the phrase "only marriage between a man and a woman is valid or recognized in California" to the state constitution. In August, federal district Judge Vaughn Walker—a Ronald Reagan appointee championed by conservative legal hero Edwin Meese—prompted the appeal by striking down Prop. 8 as a violation of the Equal Protection Clause of the 14th Amendment, which commands that no state may "deny to any person within its jurisdiction the equal protection of the law."
As for Monday's proceedings, the outcome looks likely to be favorable to Prop. 8's opponents. Earlier this week the 9th Circuit announced that Judges Michael Hawkins, Stephen Reinhardt, and N. Randy Smith will hear the appeal. Hawkins and Reinhardt are both widely known as judicial liberals. Indeed, National Review's Ed Whelan promptly denounced Reinhardt as arguably "the most aggressive liberal judicial activist in the nation." But perhaps more importantly, as George Washington University law professor Orin Kerr pointed out, "Reinhardt writes like there is no Supreme Court, and as a result his opinions have a remarkable ability to annoy the Justices." That makes the chances of Perry reaching the Supreme Court even higher.
Assuming that happens, much will depend—as it often does—on the swing vote of Justice Anthony Kennedy. And when it comes to gay rights, Kennedy leans libertarian. In Lawrence v. Texas, for instance, Kennedy declared that "Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct." Similarly, in his 1996 majority opinion in Romer v. Evans, Kennedy struck down a Colorado constitutional amendment forbidding state officials from taking any action designed to protect gays and lesbians from discrimination. As he wrote, "the amendment imposes a special disability upon those persons alone. Homosexuals are forbidden the safeguards that others enjoy or may seek without constraint." Together, these decisions suggest Kennedy will once again join the Court's liberal bloc.
As well he should. If the state is going to be in the marriage business at all—which it shouldn't be—then it has to treat same-sex couples the same way it treats heterosexual couples. There's no legitimate constitutional reason to do otherwise. Supporters of Prop. 8 claim that banning gay marriage advances a state interest in procreation. But if that's true, why not ban infertile individuals from getting married as well? Or perhaps the government should require childbirth as a condition of the marriage license? Similarly, Prop. 8 supporters say the amendment is necessary to protect and promote "traditional" marriage. Yet there's no persuasive evidence that a committed gay couple poses any sort of threat to heterosexual unions. In short, the plain text of the Constitution requires Prop. 8 to fall.
Damon W. Root is an associate editor at Reason magazine.