WASHINGTON With the Supreme Court's ruling that ended marriage bans for same-sex couples nationwide on Friday, Justice Anthony Kennedy cemented his legacy.
He is, in short, the person whose words brought gay, lesbian, and bisexual people fully under the protections of the Constitution.
"Under the Constitution, same-sex couples seek in marriage the same legal treatment as opposite-sex couples, and it would disparage their choices and diminish their personhood to deny them this right," he wrote in Friday's opinion for the court in Obergefell v. Hodges.
Twelve years to the day that Kennedy wrote the court's opinion ending sodomy laws across the nation, he wrote the opinion ending marriage bans across the nation.
He did so against harsh criticism from four of his colleagues all of whom wrote their own opinions explaining why they believed Kennedy and the four more liberal justices, who joined his opinion, were wrong.
Among the dissenting justices was Chief Justice John Roberts, who called the court's decision "an act of will, not legal judgment."
For Kennedy, though, the "legal judgment" has been one a long time in the making. In deciding that the "right to marry" applies "with equal force to same-sex couples," Kennedy laid out four principles that underpinned Friday's decision regarding the Fourteenth Amendment's "fundamental rights" due process protections. None of them should have been surprising to anyone on the court or anyone who has watched Kennedy's two-decade journey on gay rights.
First, Kennedy wrote that the protection of marital choice by the Supreme Court has, in significant part, been about the protection of "individual autonomy." In other words, marriage as a constitutional protection is about "choices ... that shape an individual's destiny." Marriage is not only a right about a couple; it also is a right exercised by an individual choosing to enter into a marriage.
Second, Kennedy wrote that marriage, as more commonly understood, "supports a two-person union unlike any other in its importance to the committed individuals." This is protection for what he goes on to detail as "intimate association" protection underlying Kennedy's 2003 opinion in Lawrence v. Texas striking down sodomy laws.
Marriage, Kennedy wrote third, "safeguards children and families." He continued at length on this subject on Friday, writing, "Excluding same-sex couples from marriage thus conflicts with a central premise of the right to marry. Without the recognition, stability, and predictability marriage offers, their children suffer the stigma of knowing their families are somehow lesser." This "central premise" of safeguarding children is not new; the argument played a part in Kennedy's 2013 opinion for the court in United States v. Windsor that struck down part of the Defense of Marriage Act.
In his fourth and final point, Kennedy wrote that marriage "is a keystone of our social order." He wrote, "There is no difference between same- and opposite-sex couples with respect to this principle." This echoed Kennedy's first gay rights opinion in Romer v. Evans which struck down a Colorado amendment in 1996 that barred local nondiscrimination protections for gays and lesbians. In that opinion, he wrote that a law that "classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else" is unconstitutional.
The case on Friday, in fact, was about more than marriage, Kennedy wrote.
The case also was about the equal protection of the laws the kind of dual-track approach to finding provisions unconstitutional that has drawn scorn from academics and court watchers. On Friday, Kennedy seemed ready to defend his approach.
"In any particular case one Clause [of the Constitution] may be thought to capture the essence of the right in a more accurate and comprehensive way, even as the two Clauses may converge in the identification and definition of the right," he wrote. "This interrelation of the two principles furthers our understanding of what freedom is and must become."
What freedom must become, he went on to write, is a goal that the court has strived to meet in the past, over decades of marriage cases from protections for interracial couples and protections against "sex-based inequality" in marriage.
"Especially against a long history of disapproval of their relationships, this denial to same-sex couples of the right to marry works a grave and continuing harm. The imposition of this disability on gays and lesbians serves to disrespect and subordinate them," Kennedy wrote. "And the Equal Protection Clause, like the Due Process Clause, prohibits this unjustified infringement of the fundamental right to marry."
Kennedy took hits from the dissenting justices for lacking caution a criticism raised by Roberts and not respecting the democratic process, a criticism raised by Justice Samuel Alito.
In response to the "democratic process" argument, Kennedy was short. "The dynamic of our constitutional system is that individuals need not await legislative action before asserting a fundamental right. ... An individual can invoke a right to constitutional protection when he or she is harmed, even if the broader public disagrees and even if the legislature refuses to act."
Regarding the "caution" argument, Kennedy pointed to the court's own experience of having held that sodomy laws were unconstitutional in 2003 after upholding them as allowed in 1986. "Although Bowers was eventually repudiated in Lawrence," Kennedy wrote on Friday, "men and women were harmed in the interim, and the substantial effects of these injuries no doubt lingered long after Bowers was overruled."
Kennedy most harshly responded, however, to a point raised by Justice Antonin Scalia. Among other criticisms, the acerbic conservative lambasted Friday's decision as not being legitimate since those who ratified that Fourteenth Amendment in 1868 did not allow same-sex couples to marry.
"If rights were defined by who exercised them in the past, then received practices could serve as their own continued justification and new groups could not invoke rights once denied," Kennedy responded. "This Court has rejected that approach, both with respect to the right to marry and the rights of gays and lesbians."
While the "right to marry" cases of the court, have been written by many justices over many decades, the "rights of gays and lesbians" did not exist in Supreme Court jurisprudence until Kennedy started protecting them.
Nearly 20 years after he wrote his first gay rights opinion, in writing about the men and women in the marriage cases before the court, Kennedy also captured his legacy on gay rights.
"They ask for equal dignity in the eyes of the law," he wrote. "The Constitution grants them that right."
