Supreme Court

Justice Anthony Kennedy and the Future of Gay Marriage


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.


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  1. anthony, do you like movies about gladiators?

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    1. Is that you Michael Savage?

  3. When I’m President there will be a chicken in every pot and a gay in every closet.

  4. So, one weird culture wars thing I don’t get: You will see many gay activists argue vociferously that gay marriage should be covered by the privileges and immunities clause- that a gay marriage in Mass. should be covered in Mississippi. This is one of the big arguments behind the repeal of DOMA.

    However, these same folks will often argue that this doesn’t apply to guns, even though as a minority group you would think that gays would find the equalizing power of guns quite appealing.

    I understand that this probably because many of the most visible gay advocates are liberal urbanites, and thus you don’t get the possibly pro-gun rural gays represented… but still.

    1. lookin for brokeback 2 eh?

    2. Don’t remember it well, but a long time ago in my con law class we learned that the P&I clause does not exist except for very narrow circumstances. Like the govt. cannot keep citizens out of certain navigable federal waterways unless access is denied to all.

      1. Slaughterhouse Cases, as I recall. Which were bullshit.

        However, you do see an argument that DOMA should be repealed so gay marriage must be recognized even in states that don’t allow it (also so the Feds do have to recognize it) so I think the question is a valid one.

    3. Because gays, thanks in no small part to Republicans, are the latest victims of Identity Politics. It already has happened to Christians and blacks, and the next group will be “Hispanics”.

  5. Funny how liberals squeak about democracy and majority rule until the majority vote doesn’t go their way.

    Then it’s off to the courts.

    1. Who cares what liberals say? The reality is, we are a constitutional republic and allowing the majority to vote on a minority’s rights is not acceptable. And regardless, gay people are trying to obtain equality under the law, no more. Wouldn’t you fight with hook or by crook to achieve/protect it for yourself?

      1. And regardless, gay people are trying to obtain equality under the law, no more.

        I thought that once as well.
        However once I discovered that the same legal protections without redefining the word was unacceptable, I realized that the word is more important than the rights.
        At that point I ceased to support those who seek to redefine marriage, for they are disingenuous and intellectually dishonest.

        1. “for they are disingenuous and intellectually dishonest.”

          Please tell me your name matches your tone (ie, sarcasm)

          1. Why should that be a sarcastic point?

            This case was all about the word “marriage” and had nothing to do with the rights involved, because equivalent rights were already present.

            I support equal rights for gays, but there is a not-small group of gay activists and their allies who are (perhaps understandably but still unjustifiably) pushing the tactic of “taking” the word marriage to tweak SoCons and Middle America generally.

            1. When you’re an actual gay person, you learn the difference between “equal rights” and marriage are actually not just semantics.

              1. Who says I am not an ‘actual gay person’? you don’t know me – you just naturally assume that because I don’t comport with Movement Homosexuality and Identity Politics, that I must somehow be a troglodytic homophobe.

                So, sketch out, in particular, how the equal rights in substance as presented by California somehow is different from being able to use the word “marriage”.

                Of course, I always thought that part of the attraction to Queer Lifestyle is that an adherent didn’t have to comply with cisgendered institutions and their biases, but I guess when you can tweak Republicans, what’s one’s identity to the Greater Team Cause?

      2. Just get rid of marriage licensure, Dan. It’s nothing but a permission slip people must buy in order to be *allowed* to be recognized as a “married couple”.

    2. Excuse me? Republicans have zero credit to discuss these matters. They would never tolerate being treated they way they treat others; however, I would support a referendum on everything they support to feed them their own poison.

  6. @AuH20 — Gays aren’t monolithic — there is ideological diversity out there. But because the GOP has hitched its wagon to everything anti-gay, the pro-gay side has a Democrat bent.

    1. I tried to give that credence in my post, by pointing out that the sample size of those who self identify as gay and are very visible typically come from very blue urban areas (New York, Chicago, San Fran, LA, etc.).

      Still, I am surprised that there isn’t a more vocal group of Blue Dog Democrat Gays- y’know, smaller government-ish, pro-gun, neutral on abortion at best, etc.

      I can see why ladygays are super feministish (especially the college educated ones who have probably taken at least 1 fem gen class), but male gays make less sense.

    2. Gay libertarians FTW?

      Gary Johnson makes President Obama look like George W. Bush on gay rights, as do many other libertarians.

  7. I know several gay people who disagree with redefining marriage.

    1. Because they’re self-hating Uncle Toms, naturally.

      1. Marrage’s not being redefined, the participants are whether human or animal (per john) und the quantity.

        1. Yeah, but as much as it pisses some off, I never did understand why polygamy isn’t a comparable situation.

          It’s something that was traditionally considered morally wrong, but if all involved are consenting adults… why shouldn’t it be legal again?

          1. morally wrong ? Polygamy is in the Bible.

          2. You don’t understand that “how many” and “who” are different questions, and that therefore there may be factors involved in one that are irrelevant to the other?

            1. What might some of those factors be?

              1. Allowing *two* people of the same sex to marry changes nothing about the legal structure. We are long past the time when the law treated husbands and wives differently. Marriage, as it legally exists now, is a union of equals.

                Traditional polygamy involves a man who may marry multiple women, making it unequal in structure. This could be fixed by making it a reflexive arrangement again, “group marriage,” a legal system which would still support traditional polygamy so long as all parties to the marriage agree, but would *legally* have all parties equal, and require all to agree to marry each other. (So the wives would be married to each other as well as the husband.) But you still have a few problems: how is divorce handled? When you are incapacitated and your wives disagree on medical treatment, who wins? Then there are “outside” problems: such arrangements, again, usually include more women than men. What do the extra (mostly straight) men do? Not that those (and other) issues couldn’t be worked out; but they are complications that simply do not arise when the only difference is whether you check between the applicants’ legs before granting a license or not.

    2. They’ll come out someday.

    3. Marriage was redefined long ago. It went from
      Marriage = til death do us part
      Marriage = til we get tired of each other, or one of us cheats, or we ‘grow apart’ or whatever

      1. ^^ THIS ^^

        My folks splitting up cuz they wanted to hump other people sure seemed to do more to the ‘institution’ of marriage than any gay couple ever could.

    4. Really? wow. Can you tell us more about their consumer choices?

  8. “But Reinhardt does not make similar use of Lawrence. Why not?”

    Just a guess, but perhaps because the Lawrence opinion says: “The present case…does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.”

    1. Another thought would be that Lawrence established a fundamental right to something, and the 9th Cir did not go this route. If the 9th Cir had held there was a fundamental right to marry, then they would have used Lawrence.

      1. Maybe, apple, but that fundamental right was already established via Loving, not Lawrence, as Judge Walker pointed out in the original circuit decision.

        I don’t think Olson was being crafty. I think the movement was scared of going for the whole enchilada (legalized nationally, puts them out of business) and as such they wanted to limit it to CA to keep the fight (and their coffers) going. They hid this behind the argument of “it’s too risky and we might lose it all.”

  9. Frankly the whole issue bores me.

  10. In our tradition the State is not omnipresent in the home…

    Unless you are installing a toilet, light bulbs, saying bad things about the government, smoking pot, or trying to grow wheat, maybe.

    1. Exactly. Let’s just hope Justice Kennedy remembers this touching sentiment when it becomes time for him to decide whether or not the government can order us to buy health insurance.

      I wouldn’t exactly bet my life savings on it; consistency doesn’t necessarily seem to be Kennedy’s strong suit.

  11. The best part is this: one of the attorney’s for the Plaintiffs (Ted Olson) is a conservative. What’s more, he was Solicitor General for George W. Bush. What even more, he represented George W. Bush in the Bush v. Gore case. It’s too bad so many others can’t seem to see this issue for what it is and what it will be going forward- a Civil Rights issue.

    1. why is that the best part? What relevance does his representation in Bush v. Gore have?

      Oh yes, this is a TEAM thing to you, isn’t it…

      1. What TEAM? I’m not a big fan of team sports to be honest.

        I think it is relevant when someone, like Ted Olson, is able to go from supporting the cause of W, who wanted the DOMA, to representing Plaintiff’s on the other side. It goes to show that even old-timers can sometimes understand something as simple as marriage.

        1. Telling the Florida Supreme Court that they were completely violating their own constitution does not, to me = “Supporting the cause” of W. If anything, Bush v. Gore and this case are analogous.

          DOMA was enacted in 1996 and signed by President Clinton, so you talking about “W” is ahistorical nonsense, with all due respect.

          Did you know that there is such a thing as gay conservatives, libertarians, Objectivists, etc.?

          1. In the above I meant the MARRIAGE PROTECTION AMENDMENT, not DOMA.

  12. This whole thing is a democrat ploy to get Santorum the nomination.

  13. I ran across a work called the Limited Government/Libertarian Case for Natural Marriage, which is the new buzz term I guess. The thing ended up annoying me so much that I wrote something on it, but the long and the short of it for me boils down to this idea that by not protecting what is called “traditional marriage” we will actually increase the intrusions of the state to protect children. It goes on to talk about the “spontaneous order” of marriage and how it predates government. The state then has a compelling interest to protect and bind the natural arrangement of mother/father/child. All of it centers around this notion of the cultural exceptance of the natural marriage. So, for centuries religious doctrine, and the government policy created by it, said that homosexuals were to be executed, so they hid. Within that system develops the “traditional” idea of marriage. Today such Dark Age notions are not allowed to influence government policy and homosexuals no longer have to hide. They demand equal treatment under the law, and they are told that the “traditional” marriage needs to be protected, because it is tradition, which brings us back to where we started. A circular argument if there ever was one. An expanded thought on it if anyone cares here: http://www.libertariansjustlik…..y-not.html

    1. Sounds like a collaboration between Santorum, Dobson, and Dondero…

  14. Sure are a lot a young ‘uns here today. I hope SugarFree doesn’t scare ’em away. Real shame, that would be.

    1. One day I’ll be dead, and you’ll have to think up a new boogeyman for your childish fears.

      1. One day your security will stop intercepting the Snickers I keep trying to sneak through your mail.

        1. How dare you make my security team so fat!

    2. ?

  15. If and when “marriage equality” becomes the law of the land, libertarians will look back scratching their heads, wondering why the state continued to grow and expand.

    It’s because, like the liberals, they are often viewing it from a personal perspective rather than a sociological/public policy and generational perspective. If marriage is only about love or other personal reasons, then we don’t need any government policies regarding marriage at all. But from a public policy and generational perspective, marriage should be about recording the natural reality of attaching mothers and fathers to one another and to their children. This serves a secondary purpose of binding the generations together.

    All of this can occur because of the innate procreative abilities (and therefore very difficult for the state to control) between men and women. Same sex couples lack this innate ability. Their procreative abilities are quite controllable, both from a medical perspective and also, potentially, from a public policy perspective. After all, it takes at least three parties to create a child in a same sex union. Actually, it takes far more than that since laboratories and doctors have to participate at an intimate and granular level. (this fact alone makes it quite clear that straight couples and gay couples should not be given equal treatment under the law in regards to marriage – they are NOT identical, because they do not have identical procreative abilities.)

    “Marriage equality” will result in redefinition of parenthood, allowing the definition of “parent” to fall into the subjective hands of the state. This will occur because “marriage equality” will unhinge biology from parenthood.

    For discussion, let’s create a new class and call it ‘the children of the future.’ They have legitimate interests regarding marriage that are never accounted for in these discussions and legal decisions. And why might that be? It’s because they have no lobbyists or lawyers dedicated to the outcome as it effects them as a future class.

    As a child of the ‘no fault divorce’ revolution, I can confidently state that any assurances that ‘the kids will be fine’ if we redefine marriage are false. The same thing was said with ‘no fault divorce’ and we now know that it was a lie – the kids were not fine and much harm was done to them. But hey, the adults were happy! And since they are the ones who can vote and make political donations, well I guess they are the only ones who matter. Also remember that another lie regarding ‘no fault divorce’ was that it would make divorce easier and less expensive for a few couples – the implication being that it would NOT result in an net expansion of the state. Anybody who has had dealings with divorce or family court knows that this was also a lie.

    Ultimately, these are the issues Libertarians need to consider:

    Will redefining marriage result in a net expansion of the state or a net contraction over the course of a generation?

    Who will be most effected by this net expansion or contraction? If it’s a net expansion on those who are not yet born, do we, as Libertarians, have a duty to them?

    1. “straight couples and gay couples should not be given equal treatment under the law in regards to marriage – they are NOT identical, because they do not have identical procreative abilities”

      You’re a very sophisticated thinker.

      Please tell me which State mentions “procreative abilities” in its definition of marriage?

      “If and when “marriage equality” becomes the law of the land, libertarians will look back scratching their heads, wondering why the state continued to grow and expand.”
      The States will not get bigger – settle down – if they allow gay marriage. How would they? One extra line to their definition of marriage will not make it bigger.

      Bottomline: why do you have a problem with two, of-age, unrelated, human beings getting married? Maybe it’s because the institution is so sacred to your divorced parents and nearly 1/2 of everyone else in this country.

      1. I forgot to ask you- when did you decide you liked women (or men)?

        I can’t remember either. Maybe that’s because it’s something you are born with. Have you even considered that?

        1. Maybe. But then again, maybe it’s not. Maybe it’s environmental/psychological. Whether somebody can identify a particular moment or not isn’t much of an argument either way.

          What I want to know is, if somebody developed a treatment that could alter one’s sexual preference, and it turned out that the vast majority, maybe near unanimous, chose to be straight, would you oppose the implementation of such a treatment?

          The reason I ask is because I’ve seen many pro-gay people scream and wail “bigot!” at the mere suggestion of such a thing, proving that they don’t genuinely have personal liberty at heart, but rather just want to replace one irrational moral standard with another.

          1. That’s a rather pointless question because it goes backwards…Assuming this, Assuming that…what would you do?
            A treatment to make people straight: funny you should mention that because many religious zealots (think Ted Haggard) believe this is possible. To answer your question would be to assume people make a conscious choice to be gay, and that is preposterous. I mean that isn’t very logical: you’re suggesting that people for centuries have been beaten, killed, etc., because they chose it. That makes no sense at all.

          2. It depends on what you mean by “implementation of such a treatment.” Making it available to those who want it? Sure, why not? Making it mandatory? Bleep no. Take it myself? I would have, once upon a time, but now, no. There are things about my personality and such I would change, but not that. It’s done me too much good, with the only downside being how some straight people act. Which, of course, is their fault and not mine.

      2. It boils down to this. Same sex marriage increases to the hostile takeover of the family by the state. Here’s how:

        Same sex marriage means genderless marriage.

        Genderless marriage means genderless parenthood.

        Genderless parenthood means legal parenthood displacing biological parenthood.

        Legal parenthood means the eventual destruction of the nuclear family.

        The destruction of the nuclear family was a critical component of Karl Marx’ worldview.

        Same sex marriage is not the benign issue people make it out to be. The destruction of the nuclear family is something libertarians should be supporting.

        1. *NOT be supporting.

    2. “Anybody who has had dealings with divorce or family court knows that this was also a lie.”

      Interesting- a lie? My parents divorced without lawyers or a day in court…

      1. One anecdote ? data that refutes a general assertion.

        1. OK – fair enough.

    3. No fault divorce is FAR better for children than living with parents who can’t stand each other anymore… or losing one to suicide or murder, depending on which way the one who just can’t take it anymore goes.

      1. False dichotomy…. as the choice isn’t either have no-fault divorce or assume increased incidences in murder/suicide rate unless/until you have proof that the absence of no-fault has positive causation to your stark and invalid choice.

        1. That isn’t where the divide lies. Notice you didn’t bother contesting that kids are better off if their parents can divorce, once it’s gotten bad enough between them.

          (Someone else in this thread, whose post I didn’t see until after making mine, gives more on the suicide/murder thing. I don’t have statistics, but I do know my mom would have killed herself had she stayed married much longer, and that once is too much.)

    4. “Will redefining marriage result in a net expansion of the state or a net contraction over the course of a generation?”

      Net contraction, because once the barriers to marriage are completely removed, the state is no longer a relevant player in the marriage rite, and that give impetus to reduce government to elimination in that area.

      “Who will be most effected by this net expansion or contraction? ”

      Anyone who wants to marry.

      “If it’s a net expansion on those who are not yet born, do we, as Libertarians, have a duty to them?”

      It isn’t a net expansion, but the duty to them is to try to reduce government in their lives NOW.

  16. “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.”

    How exactly does that work? Before they extended it, they were fine, but then by nullifying that extension, they are not? Aren’t things just as equal or unequal as before the original allowance?

    1. It works something like this:

      If a State gives a class a set of rights, it cannot then take those rights away without a rational basis for doing so. The court found Prop. 8 had no rational basis for being enacted. The Defendants must have had a pretty pathetic case if it couldn’t survive rational basis review.

      Further, if the Supreme Court hears the case and finds a fundamental right to marry, then the courts will have to up the test to strict scrutiny, which will be the point of no return for the anti-gay marriage folks. This is because the state will then have to show a very compelling reason, amongst other things, to discriminate against a minority class like gays-and-lesbians, which they obviously won’t be able to do in any State because the anti-gay litigants here couldn’t even survive a rational basis case.

      1. The Defendants must have had a pretty pathetic case if it couldn’t survive rational basis review.

        That doesn’t follow, at all. The guys over at Volokh took Reinhardt to the woodshed yesterday for, basically, misapplying the rational basis test.

        1. Are you suggesting they (D’s) had a good case then?

          1. No.

            I’m suggesting merely that they had a good enough case to clear the exceedingly low bar that is rational basis review.

  17. No-fault divorce sure does make men act differently than in the past, and mainly in a positive manner for society (public policy). From Wiki-

    A 2004 Stanford Business School study[20] compared outcomes in states that adopted no-fault divorce versus those that did not. It found:

    20% reduction in female suicide after 20 years, none for men
    33% reduction in domestic violence against women (after a rise in other states vs. a drop in no-fault states)
    Reduction in the domestic murder rate for women, none for men

    Study authors argued that in part, men were encouraged to behave better because they knew it would be easy for their spouses to divorce and find another partner.

    1. “Study authors argued that in part, men were encouraged to behave better because they knew it would be easy for their spouses to divorce and find another partner.”

      In other words, allowing competition and subjective valuations led to better behavior than heavy-handed collectivist moralizing?

      Never heard that before…

    2. Without things like mandatory assumptions of child support, kids with mom, etc, etc, I would have no issue with no-fault.

      Given how it works in reality though, no-fault is incentive for bad behavior.

      Also – if treated as a contract like is theoretically is, it would be the only contract with a get-out-of-jail-free card.

      That seems odd to me.

  18. I honestly think Reinhardt’s attempts to analogize to Romer are too clever by half. The fact situation that Romer arose out of was quite different from that in Perry: in Romer you had a voter initiative ex nihilo that basically prevented any state recognition of GLBT individuals as a protected class at all, whereas in Perry you had a voter initiative that was a reaction to a state court decision, and was confined to, essentially, restoring a status quo ante semantic distinction between civil unions and marriage.

    Now, personally, I think these are distinctions without any real difference. But I don’t think Reinhardt’s rote invocations of Romer are necessarily going to command Kennedy’s vote; there’s room for Kennedy to distinguish the cases if he wants to.

  19. Observers of this latest legal joust are not seeing the obvious. “As I noted yesterday, Reinhardt’s decision did not recognize a constitutional right to gay marriage,…” Reinhardt didn’t recognize a right to gay marriage because the SCOTUS has never recognized a right to straight marriage, yet people of the opposite sex (whom are assumed to be straight) may marry. I would expect the SCOTUS members to be able to see these distinctions. Nobody else can, but they should.

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