Anthony Kennedy: The LGBTQ Community’s Accidental Gift

Justice Anthony Kennedy announced his retirement on June 27. | US SUPREME COURT

Justice Anthony M. Kennedy, who has served on the Supreme Court longer than any of his colleagues and authored the majority opinion in all four major gay rights victories there, was a third-choice pick by President Ronald Reagan in late 1987. In that sense, he was something of an accidental gift to the LGBTQ community.

Reagan’s first choice, Robert Bork — a judge on the DC Circuit Court of Appeals and a leading intellectual architect of the originalist legal doctrine holding that the US Constitution should be interpreted according to the understanding of its framers in the 1780s — was rejected by the Senate in large part due to Massachusetts Democrat Ted Kennedy’s success in mobilizing pro-choice groups to the threat he posed to abortion rights.

Second-choice Douglas Ginsburg, who now has senior judge status on the DC Circuit, bailed on his nomination over controversy about marijuana use when he was a younger man.

The scope of Obergefell, nondiscrimination protections, religious opt-outs, abortion rights key issues to look out for in a new court

By comparison to Bork, who was a darling among conservative judicial activists, Kennedy was harder to read, but his nomination did not immediately seem promising for LGBTQ rights advocates. In a speech he had made the year before, which was read into the record during his confirmation hearings, he had championed judicial restraint — a favorite theme on the right — in arguing that whether Georgia’s sodomy law criminalizing gay sex, which the high court upheld in 1986, was right or wrong, it was a matter to be resolved through the political process. He lumped private sexual activity in with “matters not specifically controlled by the Constitution.”

On the other hand, in response to a question from Senator Joe Biden, Kennedy seemed to embrace a “spacious” notion of individual liberty that could include a “right to privacy” — a notion inimical to conservatives — in saying, “There is a zone of liberty, a zone of protection, a line that’s drawn where the individual can tell the government, ‘Beyond this line you may not go.’”

Throughout his 30 years on the court, Kennedy — on most issues — proved himself the sort of reliable conservative Reagan would have appreciated. In December 2000, he joined the 5-4 majority in Bush v. Gore, which halted the Florida election recount and handed the presidency to George W. Bush, a decision derided by its critics as the most partisan decision in US history. In 2008, he was again part of a 5-4 majority in DC v. Heller, where the court made clear for the first time that the Second Amendment protects the individual’s right to bear arms. Two years later, he joined the 5-4 majority in McDonald v. City of Chicago, strengthening the Heller ruling.

In 2009, Kennedy wrote for the 5-4 majority in Citizens United v. Federal Election Commission, the opinion for which he was probably most pilloried by progressives. There, the court held that the First Amendment prohibits caps on campaign spending by for-profit and non-profit entities that are independent of candidate campaigns and political parties — a ruling that has flooded elections with special-interest spending in the years since.

In a 2013 ruling in Shelby County v. Holder, again in a 5-4 vote, Kennedy sided with the majority in gutting key provisions of the 1965 Voting Rights Act that required state and local governments with histories of discriminatory voting practices from receiving pre-clearance in changing their voting guidelines.

And, in 2014, in Burwell v. Hobby Lobby, Kennedy was part of the 5-4 majority that recognized at least a limited right for closely-held for-profit companies to claim a religious exemption from laws and regulations at odds with their owners’ faith. The case involved the contraception coverage requirement put on employers by President Barack Obama’s Affordable Care Act, but it raised broader concerns about religious opt-outs from discrimination protections for the LGBTQ community.

That record would seem sufficient to please judicial conservatives, but in fact Kennedy was a lightning rod — and, among his more conservative colleagues, at times an object of ridicule — for his gay rights decisions.

In 1996, the court took up Colorado’s Amendment 2, a voter initiative that forbade the state or its local governments from enacting gay rights protections. In his majority opinion in Romer v. Evans, decided on a 6-3 basis, in writing that “the amendment seems inexplicable by anything but animus toward the class that it affects; it lacks a rational relationship to legitimate state interests,” Kennedy articulated a critical principle: that moral disapproval of homosexuality cannot be the basis of laws and regulations disadvantaging gays and lesbians.

“One century ago, the first Justice Harlan admonished this court that the Constitution ‘neither knows nor tolerates classes among citizens,’” he wrote. “Unheeded then, those words now are understood to state a commitment to the law’s neutrality where the rights of persons are at stake.”’

Kennedy, concluding that Colorado’s voters had essentially disenfranchised their gay and lesbian neighbors from exercising their political rights, wrote, “We must conclude that Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else. This Colorado cannot do. A state cannot so deem a class of persons a stranger to its laws.”

Kennedy’s conclusions here would prove critical to the sodomy and marriage rulings that followed.

In the 2003 sodomy ruling in Lawrence v. Texas, Kennedy wrote for five members of the court, with Justice Sandra Day O’Connor concurring using a different rationale. Kennedy did not refer to any right to privacy per se, but wrote, “Liberty protects the person from unwarranted government intrusions into a dwelling or other private places,” and then, in striking language, added, “Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate contact. The instant case involves liberty of the person both in its spatial and more transcendent dimensions.”

Finding, as in the Colorado case, that Texas provided no legitimate state interest for its law, but only animus, Kennedy wrote that the two men arrested “are entitled to respect for their private lives. The state cannot demean their existence or control their destiny by making their private sexual conduct a crime.”

Kennedy’s opinion for the 5-4 majority in Edie Windsor’s 2013 challenge to the Defense of Marriage, like his rulings in Romer and Lawrence, found that the 1996 federal law was based in no legitimate purpose but rather to “disparage” couples in same-sex marriages. Noting the autonomy states have traditionally enjoyed in authorizing marriage, he wrote, “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… DOMA’s principal effect is to identify a subset of state-sanctioned marriages and make them unequal. The principal purpose is to impose inequality, not for other reasons like governmental efficiency… it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition. This places same-sex couples in an unstable position of being in a second-tier marriage. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects… and whose relationship the state has sought to dignify. And it humiliates tens of thousands of children now being raised by same-sex couples.”

Just two years later, in his opinion for the 5-4 majority in Obergefell v. Hodges, Kennedy, identifying marriage as a “fundamental right,” wrote that state bans on marriage by same-sex couples “burden the liberty of same-sex couples, and it must be further acknowledged that they abridge central precepts of equality. 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.”

At the conclusion of his opinion, Kennedy wrote, “No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family… [The marriage plaintiffs] ask for equal dignity in the eyes of the law. The Constitution grants them that right.”

The ACLU's James Esseks. | DONNA ACETO

Commenting on Kennedy’s gay rights legacy, James Esseks, the director of the American Civil Liberties Union’s LGBT & HIV Project, said, “Those four opinions — talk about transforming the lives of lesbian and gay people. Taking us from being criminals to being able to marry, he was at the center of all of those cases.”

Then alluding to Kennedy’s more conservative votes on the court, Esseks added, “A deeply complicated figure in the law, Kennedy still did that for LGBT people apparently because he was on a journey of personal discovery based on friendships he had, and that’s pretty amazing.”

In a conference call hosted by the Leadership Conference on Civil and Human Rights, Rachel B. Tiven, CEO of Lambda Legal, while praising Kennedy, also noted Kennedy’s “bittersweet” farewell decision on gay rights — his opinion for a 5-4 majority in the June 4 Masterpiece Cakeshop decision. There, while reaffirming the right of the states to ban discrimination based on sexual orientation by businesses that sell goods and services to the public, the court found that the Colorado Civil Rights Commission that heard the complaint against baker Jack Phillips had shown “hostility” toward his religious beliefs that ran afoul of the government’s responsibility to be a neutral arbiter of such disputes.

Tiven charged that Kennedy’s “hedge” on his legacy invited “endless litigation” from anti-LGBTQ activists eager to water down nondiscrimination protections with spurious claims of religious freedom exemptions.

Esseks echoed the saliency of the religious opt-out threat — made tangible in the 2014 Hobby Lobby ruling that Kennedy joined — saying, “Our community needs to wake up to the fact that there is a very concerted campaign to use religion as an excuse to discriminate against LGBTQ people and others.” He said a similar line of attack has already made significant inroads against women’s right to choose.

Asked whether he thought the Obergefell marriage decision itself was at risk in a post-Kennedy court, Esseks responded, “Not really. I think marriage is a settled matter both of constitutional law and the culture of the country. Overturning Obergefell is definitely part of our opponents’ agenda, but it is unlikely to get to the court quickly. And the polling is very good, with up toward 70 percent approval nationwide, and with majority support in every state except Alabama.”

He conceded, however, that anti-LGBTQ activists are likely to try to nibble away at the scope of Obergefell. They lost such an effort last year, in a 6-3 Supreme Court case involving birth certificates in Arkansas, though freshman Justice Neil Gorsuch offered a disquieting dissent. Anti-gay forces have been pushing an effort to have the Texas Supreme Court rule that the city of Houston can treat married same-sex couples differently than different-sex couples for employee benefits purposes.

“There is a whole list of protections, federal and state,” Esseks noted. “And questions could be raised in a whole variety of contexts. The Houston case could well make it to the Supreme Court.”

Esseks also talked about the numerous cases in which LGBTQ advocates seek to establish that sexual orientation and gender identity discrimination should be covered under provisions barring sex discrimination. Two petitions on the sexual orientation question are currently before the high court, and one regarding gender identity is likely to go the court in August.

Should one or more of these cases be taken up by a post-Kennedy court, “That’s a very big deal moment for LGBT community,” he said.

“The country as a whole already believes we are protected and would be shocked to learn that we’re not,” Esseks said, adding, “But the court may say we’re not.”

Donald Trump’s nominee to fill Kennedy’s seat, he said, should be asked for their views about discrimination, religious op-outs, and the scope and permanence of Obergefell. Senators are unlikely to get answers, but the questions will focus the issue for swing members to decide if “this person is going to take America in a direction I don’t want to see us go,” Esseks said.

In that vein, opponents of any Trump nominee will undoubtedly underscore the threat to a woman's right to choose, which the president pledged to overturn in his 2016 campaign.

Lambda Legal CEO Rachel B. Tiven at last week's LGBTQ Pride Rally. | DONNA ACETO

Others besides Tiven on the Leadership Conference press call — including the National Women’s Law Center, the Human Rights Campaign, the NAACP Legal Defense and Educational Fund, the Mexican American Legal Defense and Educational Fund, and People For the American Way — even as they noted Kennedy’s votes in the past week to uphold Trump’s Muslim ban and Ohio’s aggressive efforts to purge its voter rolls and to deny public sector employees at least some contribution from all workers they represent, whether members or not, also pointed to numerous cases where he was “an important moderating voice”: including on federal fair housing requirements, on affirmative action, and in abortion cases, most recently a critical 2016 challenge to women’s access to the procedure in Texas.

But more than anything, the participants on the call emphasized one key message: that the Senate should observe what they called the “McConnell rule” — that no Supreme Court nominee be considered by the Senate until after voters have had their say in the November midterms. After all, that was the rule that gave Neil Gorsuch a Supreme Court seat, instead of Merrick Garland. With Senate Majority Leader Mitch McConnell the umpire here, however, that strategy seems like a Hail Mary.