Watching Kennedy: The Court’s Swing Voter Offers Clues to a Gay-Marriage Ruling

Justice Anthony Kennedy will be at the center of one of the great historic civil rights debates of our lifetimes

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Rich Pedroncelli / AP

Supreme Court Justice Anthony Kennedy

This morning the Supreme Court will hear oral arguments about the constitutionality of the Defense of Marriage Act, a 1996 law that prevents the federal government from recognizing state-level same-sex marriages. In an effort to divine how the case might be decided, activists, journalists and legal experts will study each Justice’s questions and utterances with the kind of exhaustive, even absurd, scrutiny typically reserved for wills and ransom notes. But the words of Justice Anthony Kennedy — the swing vote on a panel whose other eight members, four to a side, are relatively predictable — will likely offer the most valuable clues. If yesterday’s arguments around a different gay-marriage case are any indication, however, they may be tantalizingly inconclusive.

When the court heard arguments on Tuesday about the constitutionality of Proposition 8, a 2008 California ballot measure that banned gay marriage in the state, Kennedy occasionally seemed in sync with conservative Justices like Antonin Scalia and Samuel Alito, who warned, among other things, that an institution as old as heterosexual marriage should not be redefined until its potential societal effects are clearer. Redefining marriage would lead society into to “uncharted waters,” Kennedy said, and (mixing metaphors) potentially over a “cliff.” In an exchange with Charles Cooper, the private lawyer arguing for backers of Proposition 8 (which California’s governor and attorney general declined to defend themselves), Kennedy said that “[the] sociological information is new. We have five years of information to weigh against 2,000 years of history or more.”

(MOREPride and Prejudice: An Interactive Timeline of the Fight for Gay Rights)

But Kennedy then pivoted to a new perspective, suggesting that same-sex-marriage bans are causing an identifiable harm right now. “On the other hand,” he continued, “there are some 40,000 children in California … that live with same-sex parents, and they want their parents to have full recognition and full status. The voice of those children is important in this case, don’t you think?” Kennedy said those children may be suffering an “immediate legal injury” as a result. With that, he had flipped the conservative talking point about same-sex unions harming children on its head; maybe the real harm to children is from gay-marriage bans.

If Kennedy is internally conflicted, that’s good reason to believe the court will issue a narrow ruling on Proposition 8 that affects only California, perhaps on the grounds that the measure unlawfully removed a right that the state’s supreme court had previously granted. Several Justices also raised technical questions about the plaintiffs’ standing, and at one point Kennedy wondered aloud whether the court should have taken the case. Even the liberal Justices showed little enthusiasm for transforming marriage nationally, and at times their questions were surprisingly heterodox: Justice Sonia Sotomayor asked Ted Olson, the former Bush Administration solicitor general who argued against Proposition 8, why same-sex marriage wouldn’t open the door to polygamous and incestuous unions. Olson responded that the law can prohibit certain kinds of conduct — e.g., marrying your sister or your son or three people at once — but can’t deprive rights to a class of citizens — e.g., gays and lesbians — based on their identity.

Today’s Defense of Marriage Act (DOMA) case requires a clearer decision. Unless the court rejects it entirely (and there is a potential standing argument here), the Justices face a binary choice: uphold DOMA or invalidate it. Narrowly, the case is about an 83-year-old New York City woman named Edith Windsor, who is fighting a $363,000 estate-tax bill on an inheritance from her deceased longtime partner, whom she married in Canada. Windsor would owe no taxes on the estate of a husband. (This is one of several legal and financial benefits denied to same-sex married couples under DOMA.) But the broader question is whether the federal government can treat same-sex married couples differently from heterosexual ones, under a law passed by a Republican Congress — and signed by Bill Clinton — to keep gay marriages permitted in one state from becoming valid nationwide.

There are reasons why Justice Kennedy — who has supported gay rights in the past — might find striking down DOMA easier than striking down Proposition 8. Doing so would not make any same-sex couples immediately eligible to get married, which might limit his concern about “uncharted waters.” And the “immediate legal injury” suffered by people like Windsor, with her very large and very specific tax bill, is perhaps more tangible than the harm to children whose same-sex parents are denied legal marital status. Striking down DOMA, however, wouldn’t suddenly make gay marriage legal across the U.S. Individual states would still be free to set their own policies, although the absence of DOMA would bring wide legal and political confusion, as states like Alabama consider which state laws — including taxes, child custody, inheritance — should apply to, say, two men who were married in Massachusetts. (That’s a problem, even if the airlines don’t book too many Provincetown-to-Mobile itineraries.)

Of course, divining meaning from oral arguments before the Supreme Court is risky business. Last summer, initial word from oral arguments in the Obamacare case was that the Administration’s lawyer had botched his presentation and the court was poised to strike it down. The actual result was very different, a ruling engineered not by Kennedy, whom most observers had pegged as the decider, but by Chief Justice John Roberts. The lesson? Rather than parsing words and guessing at outcomes, we might be better off just appreciating one of the great historic civil rights debates of our lifetimes.

(PHOTOS: Same-Sex-Marriage Demonstrations)

106 comments
martinjobrien@att.net
martinjobrien@att.net

who ever wants to go on the rxpressway , the wrong way ,go ahead  !  See u later

BeckyFrench
BeckyFrench

Allowing Gay American Citizans to marry and Have the same Benifits as All Other americans , Is no Threat to any Straight Man or Woman: Religious or Not..... We are all Equal in the Eyes of the Lord.... I do not think he would care  at all, as long as You lived your life in a Compassionate, Loving, Caring manner: Period

lauradeemcgee
lauradeemcgee

@TIME Eh you said the same thing on the Affordable Health Act and it was decided by Roberts.

Regio121
Regio121

Let us see 2 or 3 generations later population rate drops 40% worldwide, machines and artificial life a common thing. Humans not longer capable to reproduce or either too old (especially women on the 40 or 50’s if there any left) or their belief prevent them from having their own child. That’s what I call DISARMAGEDDOM worse than a nuclear war Armageddon.

king1ID
king1ID

@TIME let it b on record dat Justice Kennedy wil be held responsible for any alteration of d timeles configuratn of marriage. 1man 1woman

SemperFi1946
SemperFi1946

Kennedy is wetting his pants at being the deciding vote on this issue.  No doubt the SCOTUS will once again overstep their authority and decree a new law and non-exstent Constitutional rights from the bench.

CrossWinds
CrossWinds

John 15:22.......
If I had not come and spoken to them, they would have no sin, but now they have no excuse for their sin.

drudown
drudown

I would respectfully submit that it it is Chief Justice Roberts- not Justice Kennedy- that is going to be the pivotal player in this case and many others in our Nation's immediate future. Much to the surprise of partisan folk on both sides, Chief Justice Roberts is more concerned with etching his mark upon precedent with an eye toward a progressive victory.

Think you can see inside his mind?

"The map is not the territory." Alfred Korzbybski

JohnSonedecker
JohnSonedecker

Isn't it interesting that the "typo" DIVINE is used instead of DEFINE? Is this a "Freudian Slip" or is Jehovah's presence in all things reminding us all that homosexuality is expressly identified as wrong in the Bible.....................

retiredvet
retiredvet

What's amazing to me is that there is ANY doubt in the court at all. It's about equal rights for all families.

Regio121
Regio121

There is nothing to do with the bible of course not. it’s the individuals whom think they can get extras, rights, they do have the same rights as you and me, under our constitution but since they’re no happy they look to explore other venues to satisfy their carnal mind weakness in other words abused of the current liberties. If that is the reason, why not allow PROSTITUTION. These women have more reason and RIGHTS to recognized than any other lesbian or gay does. I do respect your right to explore your body and mind, but without prejudicing others. Our institution of marriage will turn in another PROINSTITUTION; similar to the other women that others point criticizes as PROSTITUTES but without the IN. God has nothing to do with our laws, there are two kinds of laws and I’m afraid of God’s law, human law is meant to be bend and broken and justified by people like you. Nothing personal but we will always justify our wrongs one way or another.

josephtanst
josephtanst

@king1ID @TIME Timeless my ass. What do you say to the historical definition of marriage as 1 man, many women?

Piacevole
Piacevole

@SemperFi1946  Constitutional rights are not "non-existent."  That's already been settled, several times.

notsacredh
notsacredh

Legacy votes? When the writing is on the wall, it sometimes pays to read it.

grape_crush
grape_crush

@JohnSonedecker> Isn't it interesting that the "typo" DIVINE is used instead of DEFINE?

No. It's more of a sign of poor reading comprehension, or ignorance of the meaning of words.

Text reads: "In an effort to divine how the case might be decided, activists.."

Use of the word 'divine' as meaning holy doesn't fit in this sentence. Use of the word 'divine' as meaning foretell does.

TyPollard
TyPollard

@retiredvet 

Using the bigot's "logic" perhaps we should ban straight marriage for the good of the children.

king1ID
king1ID

@josephtanst Yes Joe. Timeless is not d same as historical. An aberration can never b normal however popular it gets

drudown
drudown

@sacredh 

My sense is that Chief Justice Roberts is going to overturn DOMA- just as he voted in favor of Obamacare- because that is what a dispassionate construction of Federal law requires.  

josephtanst
josephtanst

@king1ID ...it all is your belief. You are making a supposition that has no basis in reality. Just cos you believe doesn't make it so.

josephtanst
josephtanst

@king1ID That we are born and then we die is a reality; what happens to us after is open to question. You insisting that someone controls...

king1ID
king1ID

@josephtanst And by d way, dat we were born, & we wil die is nt a belief. Its relity. Widom demands dat we trust some1 who hs control of all

king1ID
king1ID

@josephtanst ok Joe. Its been nice chating wit u. I think I'v made my point. I'm hapy u r familiar wit d Bible. Obey it or nt, doesnt change

josephtanst
josephtanst

@king1ID I think it's fine if you think your life is bound to someone or something else. Don't force that belief on us, please.

josephtanst
josephtanst

@king1ID I had no say in when I was born, but I also don't think anyone else did either. Except my parents who decided when to have sex.

king1ID
king1ID

@josephtanst and don't tel me ur life belongs 2u. U had no say when u were born. And 4sur, we will all die one day.

josephtanst
josephtanst

@king1ID And again, nobody's talking unlimited freedom, just the freedom for one person to marry the one they love, regardless of gender.

josephtanst
josephtanst

@king1ID ...you yourself are probably breaking a dozen such "laws" right this very moment, right?

king1ID
king1ID

@josephtanst d demands of d LGBT r beyond even their own understandin. Ur life belong to some1 else n u r bound 2give account.

josephtanst
josephtanst

@king1ID You do know that if we go by the strictest interpretation of "the demands of God" as laid out in the Bible...

king1ID
king1ID

@josephtanst Have u considered d result of unlimited freedom? Certain insanity! The demands of God r not grevious. Give up stop fightin it

josephtanst
josephtanst

@king1ID No, and I have no idea where you got that. I'm only implying that gay marriage is not going to turn straight pple gay like u think.

king1ID
king1ID

@josephtanst R u implying that we can go ahead and legalize murder, armed robbery, & all d known vices since they r only a minority?

josephtanst
josephtanst

@king1ID In other words, my father would have married a woman, and my mother would have married a man no matter what.

josephtanst
josephtanst

@king1ID Oh come on. Legalizing gay marriage is not going to turn everyone in the world gay. Straight people will always be the majority.

pretendods2
pretendods2

@king1ID @josephtanst and also since you want to bring up that argument there are millions of kids not being born right now bc of a straight couple not wanting to have kids. should they not have the freedom to be married either? hmmm.

king1ID
king1ID

@josephtanst Think my dear, think... Where would u b if ur dad had "married" a man, or ur mum a woman? Freedom is not a ticket 4 insanity

josephtanst
josephtanst

@king1ID There is no such thing as a timeless definition of marriage when that definition has constantly changed throughout time.

pretendods2
pretendods2

@king1ID @josephtanst timeless hmm? bc the definition of marriage has never before changed in history. it's not like white people were kept from marrying black people were they? oh wait.... seems that did happen and marriage did change. huh who knew?

notsacredh
notsacredh

drudown, I'm sorry I didn't reply yesterday. I watched the game and then went to work. What I meant was that I thought Roberts' ACA vote was him casting a vote for his legacy and not following the republican party line like he usually does. I think it's possible he does the same with the same sex marriage cases. He can see the tide is turning (or has turned) and he may well be more concerned with how he is viewed by future generations than he is with keeping in lockstep with conservatives.