Anthony M. Kennedy was a 44-year-old appeals court judge in Sacramento a Republican appointee and happily-married Catholic when he first confronted the question of whether the Constitution protected the rights of gays and lesbians.
His answer in 1980 did not make him a gay rights hero. Kennedy upheld the Navys decision to discharge three service members for homosexual acts.
But less noticed in that somewhat reluctant opinion unusual for its time, just two weeks before Ronald Reagan was elected president were the doubts Kennedy raised about the constitutionality of laws criminalizing gay sex.
To many persons, the regulations [labeling homosexuals as unfit] may seem unwise, Kennedy wrote for the U.S. 9th Circuit Court of Appeals. Outside the unique military context, the Constitution may well protect consensual private homosexual conduct.
Judges Antonin Scalia and Robert Bork, whom Reagan appointed to the U.S. appeals court in Washington, dismissed as completely frivolous the notion that the Constitution extended rights to gays and lesbians.
"We would find it impossible to conclude that a right to homosexual conduct is fundamental" and protected as a matter of liberty and privacy, they wrote in 1984.
Reagan would later nominate both Scalia and Bork to the Supreme Court, but Borks nomination failed after a momentous Senate battle. After Borks defeat, Reagan turned to a young lawyer he had known from his years in Sacramento Anthony Kennedy.
It turned out to be pivotal moment in the nation's struggle over gay rights.
Kathleen Sullivan, then a young Harvard University law professor, recalls hurriedly reading Kennedys 1980 opinion on her way to a meeting with Senate Democrats who were considering the new nominee. What a contrast, recalled Sullivan, a former Stanford Law School dean. "I said, 'Hes not going to be like Bork at all.'"
