Proposition 8 and Justice Kennedy's Legacy

Proponents of Proposition 8 gained an important victory this week. The California Supreme Court ruled that they have standing to appeal a U.S. District Court's decision which ruled that the ballot measure banning same-sex marriage violated the due process and equal protection rights of same-sex couples. California state officials have declined to defend Prop 8, but now its supporters can. 

The case, Perry v. Brown, is now headed to the Ninth Circuit Court of Appeals, and potentially the U.S. Supreme Court. And, contrary to what our better instincts would have us believe, a major victory for the LGBT community at the highest court is quite possible. The Perry case could be the defining moment for one of the Court's greatest proponents of gay and lesbian rights: Justice Anthony Kennedy. 

 

Justice Kennedy wrote the majority decisions for two landmark civil rights cases involving state laws  that singled out gays and lesbians, Romer v. Evans and Lawrence v. Texas. And in both instances the Court ruled against the states.

The Romer case concerned an amendment to the Colorado state constitution, known as Amendment 2, which was passed by statewide referendum. The amendment eliminated all laws preventing discrimination based on sexual orientation. Furthermore, no Colorado governmental entity could take any action to prohibit discrimination based on sexual orientation before first amending the state constitution to permit such action (generally-applicable statutes were permissible). Amendment 2 effectively denied gays and lesbians access to the legislative process as a means to ensuring their protection from discrimination. 

 

The state of Colorado argued that Amendment 2 put “gays and lesbians in the same position as all other persons.” Justice Kennedy rebutted this argument, stating, 

 

Homosexuals, by state decree, are put in a solitary class with respect to transactions and relations in both the private and governmental spheres. The amendment withdraws from homosexuals, but no others, specific legal protection from the injuries caused by discrimination, and it forbids reinstatement of these laws and policies.

It's not difficult to see the Court making a similar argument in the Perry case regarding Proposition 8. 

Kennedy also addressed the state's arguments that Amendment 2 merely took away gay and lesbians' “special status” under the law. He stated, 

 

[W]e cannot accept the view that Amendment 2’s prohibition on specific legal protections does no more than deprive homosexuals of special rights. To the contrary, the amendment imposes a special disability upon those persons alone. Homosexuals are forbidden the safeguards that others enjoy or may seek without constraint . . . . These are protections taken for granted by most people either because they already have them or do not need them; these are protections against exclusion from an almost limitless number of transactions and endeavors that constitute ordinary civic life in a free society.

The Court struck down Amendment 2 under the Equal Protection Clause of the Fourteenth Amendment. It applied rational basis, the lowest standard of scrutiny, to the non-suspect class of plaintiffs discriminated on the basis of sexual orientation (as opposed to a suspect class or quasi-suspect class, in which the Court would have applied strict or intermediate scrutiny, respectively). This is an important point of the case: Colorado's ballot measure failed even the lowest level of scrutiny applied by the Court. The Court found that Amendment 2 bore no rational relation to any legitimate government purpose. Kennedy stated,

Amendment 2 confounds this normal process of judicial review. It is at once too narrow and too broad. It identifies persons by a single trait and then denies them protection across the board. The resulting disqualification of a class of persons from the right to seek specific protection from the law is unprecedented in our jurisprudence.

Thus, Kennedy wrote a remarkable decision in Romer v. Evans, in which the Court sided against state action “born of animosity toward the class that it affects.”

Kennedy also wrote the majority decision in Lawrence v. Texas. Prior to Lawrence, the Supreme Court had upheld a Georgia statute which criminalized sodomy in Bowers v. Hardwick. In Bowers, the Court framed the issue as “whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy and hence invalidates the laws of the many States that still make such conduct illegal and have done so for a very long time.” The Court found that “to claim that a right to engage in such conduct is ‘deeply rooted in this Nation’s history and tradition' or 'implicit in the concept of ordered liberty' is, at best, facetious.” It found, under rational basis review, that the state's interest in promoting “morality” was a legitimate one.

The Court revisited the issue of laws prohibiting sodomy in Lawrence v. Texas. The law at issue in Lawrence was a Texas statute that made it “a crime for two persons of the same sex to engage in certain intimate sexual conduct.” Because the lower court cited Bowers in upholding Texas' law, the Supreme Court also considered the holding in that case.

Kennedy framed the issue in Lawrence in a very different manner than the Court did in Bowers. It was not, as the Bowers Court stated, “whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy.” Kennedy framed the issue as “whether petitioners were free as adults to engage in private conduct in the exercise of their liberty under the Due Process Clause.”

Kennedy put forth an impassioned defense of private consensual sexual conduct. He spoke not of fundamental rights or equal protection, but of liberty. “When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.”

Kennedy looked to prior case law, Planned Parenthood of Southeastern Pa. v. Casey, and used language that should be pretty encouraging to opponents of Proposition 8 given the context in which it was used. Kennedy writes “[t]he Casey decision again confirmed that our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education.” He then quotes the following passage from Casey:

These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State."

The Court in Lawrence overturned Bowers and held that “[petitioners’] right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government.”

If Perry reaches the Supreme Court, which it seems all but certain to, Justice Kennedy will likely cast the deciding vote and write for the majority. Furthermore, he could very well define his legacy with this case. And, considering his opinions from previous decisions involving LGBT rights, don't be surprised if he sides again with liberty.