The German chancellor Angela Markel won Time magazine’s designation as “Person of the Year” for 2015 on the strength of her robust stance on such issues as Europe’s economic problems and the Syrian refugee crisis. Among seven other finalists, three possible selections were Americans: “Black Lives Matter” activists, the newly transitioned transgender Caitlyn Jenner, and the Republican presidential candidate Donald Trump.
If limited to the United States, however, the leading candidate should have been Supreme Court Justice Anthony M. Kennedy, who played a pivotal role in a term of memorable decisions that tilted left in part because of Kennedy’s votes in several major cases. Most importantly, Kennedy capped a long record of supporting gay rights by authoring the landmark opinion in Obergefell v. Hodges that guarantees marriage rights for same-sex couples nationwide. The ruling seems likely to bring about a lasting transformation in the legal rights and social acceptance for gays and lesbians.
Kennedy had signaled his support for gay rights as early as the 1980s when, as a federal appeals court judge, he criticized the Supreme Court decision that upheld laws making gay sex a crime. Once on the court, Kennedy wrote the 2003 decision in Lawrence v. Texas that overturned the previous ruling and declared anti-sodomy laws unconstitutional.
In his opinion, Kennedy eloquently confirmed that gay men and lesbians “are entitled to respect for their private lives.” Dissenting, Justice Antonin Scalia warned that the decision could lead to a judicial ruling to permit same-sex marriage. And, for once, Scalia was right. By refusing to allow moral disapproval to justify anti-gay laws, the decision led all but inevitably to a similar ruling to strike down laws preventing gay and lesbian couples from marrying.
Kennedy spoke for the 5-4 majority in United States v. Windsor (2013) in striking down the so-called Defense of Marriage Act, which barred federal marriage-based benefits to same-sex couples even if legally married in their home states. Again, the court rejected moral disapproval as a basis for discriminating against gay men or lesbians. Windsor set the stage for a quick and all but unanimous succession of federal court rulings that rejected the arguments opponents offered for banning same-sex marriage.
In Obergefell, Kennedy again led a 5-4 majority in completing the move to marriage equality. In the central part of the decision, he stressed the importance of family to individuals and to society. “[I]t demeans gays and lesbians for the State to lock them out of a central institution of the Nation’s society,” Kennedy wrote. He noted as well that the marriage bans imposed a “stigma” on the children being raised in same-sex families.
The justices’ deliberations in the case were private, of course. The details will emerge, if ever, only when and if the justices’ papers are made public years from now. What is known today is that Kennedy and the four liberal justices Ginsburg, Breyer, Sotomayor, and Kagan were unable to persuade the four conservatives, including Chief Justice John G. Roberts.
Faced with a similar turning point 60 years earlier, Chief Justice Earl Warren famously forged the Supreme Court’s unanimous decision in Brown v. Board of Education (1954) to strike down racial segregation. Opponents resisted and defied the decision, but the ruling is now universally praised.
The marriage ruling is provoking resistance, and legal questions remain about religious freedom rights of public officials or private individuals to express their disapproval of same-sex marriage. But the resistance by county clerks such as Kentucky’s Kim Davis seems destined to fade away, sooner rather than later. And the calls by some Republican presidential candidates to overturn the decision seem unlikely to bear fruit.
Kennedy visibly wielded influence in a second major civil rights-related decision. He spoke for the same 5-4 majority in a ruling that upheld a broad interpretation of the Fair Housing Act used to combat residential segregation. The ruling in Texas Department of Housing and Community Affairs v. Inclusive Communities Project allows the law to be enforced against policies by local housing authorities or private developers that have a “disparate impact” on minorities. The court’s conservative bloc had seemed poised to weaken the law by limiting it to intentional discrimination. Kennedy surprised many observers by siding instead with the liberal bloc.
In another surprise of sorts, Kennedy joined with Roberts and the liberals in a 6-3 decision that safeguarded President Obama’s health care reform from a potentially devastating challenge. The ruling in King v. Burwell upheld Obamacare subsidies for customers of health care exchanges nationwide even in those states that refused to create the new insurance marketplaces. Kennedy’s vote was unexpected to some extent because of his vote in an earlier decision to rule the entire Affordable Care Act unconstitutional.
Credit for the gay marriage ruling extends to many others besides Kennedy. Just as Thurgood Marshall played a vital role in the desegregation decision, credit belongs to Evan Wolfson, who laid out the argument for same-sex marriage while a Harvard Law School student in the early 1980s. Beginning in the 1990s, Wolfson then helped forge the combined legal and political strategy that won marriage rights state by state before the Supreme Court’s decision.
Many other lawyers played a part as well. And so too did the many gay and lesbian couples who demonstrated in court and to the wider public that their lives together were worthy of legal respect. In the end, however, the decision came down to one vote, and that vote was Kennedy’s.