The U.S. Supreme Court decided last month that it would consider a constitutional right to same-sex marriage, and the decision could come down to Justice Anthony Kennedy.
Justice Kennedy, a California native, is the most likely member of the court’s conservative wing to join the liberal side in a key ruling. Since 1996, Kennedy has cast the deciding vote in several gay marriage cases, and it is likely that he’ll do so when the topic comes up again.
“Justice Kennedy is the swing vote on this court, and I’m betting he’ll be the swing vote in this case,” said Erwin Chemerinsky, the dean of the University of California-Irvine School of Law, in the Wall Street Journal.
Same-sex marriage, which is currently legal in 36 states and Washington, D.C., was up before the Supreme Court in 2013, which ended in a 5-4 decision not to define marriage as strictly between a man and a woman. Kennedy wrote the decision that struck down part of the Defense Against Marriage Act, saying that the law “writes inequality into the entire United States Code.”
“The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity,” Kennedy wrote in the decision. “The principal purpose is to impose inequality, not for other reasons like governmental efficiency. Responsibilities, as well as rights, enhance the dignity and integrity of the person. And DOMA contrives to deprive some couples married under the laws of their State, but not other couples, of both rights and responsibilities.”
Kennedy’s words have been used by many lower courts and gay marriage advocates in their arguments for equal rights for same-sex couples. Many legal experts and close followers of the Supreme Court expect Kennedy to be the deciding factor in the next gay marriage decision, and despite being a 1988 appointee of Republican Ronald Reagan, Kennedy has leaned to the liberal side on several gay marriage decisions.
However, Kennedy’s decision is anything but certain. Frank J. Colucci, the author of “Justice Kennedy’s Jurisprudence,” has studied Kennedy’s decisions thoroughly and chalked them up to something far deeper than inconsistency or opportunism.
“The key to Justice Kennedy’s votes, Mr. Colucci says, is his moral reading of the Constitution: He sees the document as an unfolding story of ever greater individual liberty,” John McGinnis wrote in a 2009 Wall Street Journal article. “Thus he opposes laws that abridge sexual freedom, including laws against homosexual conduct, If an originalist reading of the Constitution does not reveal such a liberty—relying on the received meaning of the Constitution’s words at the time they were written—Justice Kennedy’s moral reading does.”
Complicated as Justice Kennedy’s rulings may seem, there is little doubt that his vote will be an extremely important one when same-sex marriage comes before the Supreme Court again.
