In his 1996 majority opinion in the case of Romer v. Evans, Supreme Court Justice Anthony Kennedy struck down a Colorado constitutional amendment that had forbidden state officials from taking any action designed to protect gays and lesbians from discrimination. "The amendment imposes a special disability upon those persons alone," Kennedy wrote. "Homosexuals are forbidden the safeguards that others enjoy or may seek without constraint." Several years later, in his majority opinion in Lawrence v. Texas (2003), Kennedy struck down that state's ban on sodomy for violating the liberty protected by the Due Process Clause of the 14th Amendment. "In our tradition the State is not omnipresent in the home," Kennedy wrote. "Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct."
So when 9th Circuit Judge Stephen Reinhardt sat down to write yesterday's decision nullifying California's Proposition 8, which had amended the state constitution in order to forbid gay marriage, Kennedy's words were not far from his mind. Indeed, Reinhardt repeatedly cites Romer while making the case against Prop. 8. But Reinhardt does not make similar use of Lawrence. Why not?
As I noted yesterday, Reinhardt's decision did not recognize a constitutional right to gay marriage, it simply holds that in this specific case California has violated the 14th Amendment's Equal Protection Clause by allowing gay marriage and then later taking it away. Had Reinhardt wanted to the address the larger question of gay marriage's constitutionality, he undoubtedly would have cited Kennedy's sweepingly libertarian decision in Lawrence. That he did not do so suggests that Reinhardt does not believe that Kennedy is currently ready to vote in favor of that constitutional right. Thus the 9th Circuit offered Kennedy a narrower argument relying on the narrower precedent in Romer. Should the Supreme Court take up the Prop. 8 case on appeal, there's no way Kennedy is going to go against his previous line of argument in Romer. It was a crafty—if transparent—move by Reinhardt. We'll see if it works.