The Intellectual Peregrinations of Anthony Kennedy

I’m on the verge of finally posting the first installment in my promised series of pieces on David Blankenhorn’s online interview show “The Conversation,” but I felt that there would be an obvious lacuna in my treatment of the culture war over gay marriage if I failed to say something about last week’s Supreme Court rulings on the subject. Disclaimer: I am not a lawyer and have no specialized training in the law, so the following should not be taken as an attempt at professional legal analysis.

This past February, Chris and I were fortunate enough to meet (now former) Daily Beast blogger Andrew Sullivan when he was invited to speak at Haverford College. His talk was primarily concerned with the apparent contradictions in his identity; he began by announcing that he was “coming out” as a Christian, a conservative, and a homosexual – and that the last of those three was probably the least controversial at a place like Haverford.

In the course of illustrating how he reconciles what others often see as conflicting values and commitments, Sullivan explained that, while he personally supports the legal recognition of same-sex marriage (a cause that was brought into the public consciousness in part through his own pioneering work), he believes strongly that the issue should not be decided in the courts. Rather, it should be settled by the people, whether through popular referenda or the acts of state legislatures. In his view, contentious public debates are not ultimately resolved by the dictates of judges, but by the changing of hearts and minds as citizens enter into dialogue with one another. In the case of gay marriage, Sullivan sees acceptance as more likely to spring from the realization that one has gay friends, neighbors, and family members who aspire to form committed relationships than from the “intellectual peregrinations of Anthony Kennedy,” the justice generally considered the Supreme Court’s swing vote in tough cases.

I was reminded of that phrase when I read the opinions and dissents in the two same-sex marriage cases that were decided by the Court last week: United States v. Windsor, which dealt with the constitutionality of part of the 1996 Defense of Marriage Act (DOMA), and Hollingsworth v. Perry, which challenged California’s Proposition 8, a voter-enacted ban on recognition of gay marriages. The Windsor case in particular seemed to me to be an important example of what Sullivan was worried about.

Many outside observers had predicted that the Could would strike down Section 3 of DOMA, which prohibits the federal government from recognizing same-sex marriages that are performed in states where such unions are legal, on the grounds that it interfered with the traditional ability of states to regulate the definition of marriage for themselves. When it came to Proposition 8, the Court was seen as either dismissing the case for procedural reasons or otherwise finding a way to allow same-sex marriages to resume in California without mandating their recognition nationwide. To do otherwise would be to take sides in a volatile culture war. In both cases, these outcomes would be consistent with Sullivan’s pluralistic attitude about how a charged debate over social issues should proceed.

But this is not quite how things turned out. Helen Alvaré, a law professor at George Mason University, wrote after the rulings on Bloomberg’s SCOTUSblog that

[m]any likely expected that, to the extent that a discussion of the “nature of marriage” would feature at all in the Supreme Court’s same-sex marriage opinions, it would take place in the Hollingsworth v. Perry (Prop 8) case… Windsor (DOMA), it was widely thought, could well be decided upon federalism grounds: i.e. states’ traditional authority over the validity and incidents of marriage.   Instead, the Supreme Court’s discussion over the meaning of marriage took place in Windsor, albeit after a fairly extended, but ultimately inconclusive and nondispositive treatment of federalism.

Although Section 3 of DOMA was ultimately invalidated by relying in part on the concept of states’ rights, the Court also cited the fact that the law abridged the “equal liberty” guaranteed under the Fifth Amendment. The argument, authored by Kennedy, is esoteric. As I understand it, it is considered to be novel even by experts in constitutional law. In fact, it seems to me that it would not be inappropriate to label it an “intellectual peregrination.”

This is not to suggest that novelty in Supreme Court decisions is a bad thing. Cases that deal with hitherto unexamined constitutional questions will have to draw upon novel legal theories from time to time. The issue here is the fact that the argument seemed secondary to the sentiments the Court wished to express, and those sentiments came dangerously close to – as the title of Alvaré’s post puts it – “taking sides on the meaning of marriage.”

What do I mean when I say that argument was made secondary to sentiment? Ultimately, it is clear that the majority does not rely on the notion of states’ rights as the final justification for its decision, since it admits that

[b]y history and tradition the definition and regulation of marriage… has been treated as being within the authority and realm of the separate States. Yet it is further established that Congress, in enacting discrete statutes, can make determinations that bear on marital rights and privileges.

Rather, the final justification is the fact that DOMA was motivated by a “bare desire to harm” a politically unpopular group:

When New York adopted a law to permit same-sex marriage, it sought to eliminate inequality; but DOMA frustrates that objective through a system-wide enactment with no identified connection to any particular area of federal law. DOMA writes inequality into the entire United States Code.

The problem is that this line of reasoning begs the question of whether limiting the definition of marriage to opposite-sex couples does or does not represent a form of legally sanctioned inequality. It asserts what is still disputed by so many: that the right to same-sex marriage follows necessarily from norms of fairness and justice. In other words, the Court takes sides in the debate over the meaning of marriage.

Again, it was entirely possible for the majority to reach the same result by a less controversial logic. All that was needed was to embrace wholeheartedly the idea that is halfheartedly entertained at the outset of the opinion, and conclude that the enactment of DOMA interfered with the historical prerogative of the states to “define and regulate” marriage. Leaving the power to define marriage to the states could hardly have been assailed as judicial activism or progressive social engineering, and even those disappointed with the result would have been obliged to admit that the argument used to justify it was a neutral one.

The always colorful Antonin Scalia authored a scathing dissent in which he railed against what he saw as an implicit ad hominem in the majority’s opinion:

To be sure (as the majority points out), the legislation is called the Defense of Marriage Act. But to defend traditional marriage is not to condemn, demean, or humiliate those who would prefer other arrangements, any more than to defend the Constitution of the United States is to condemn, demean, or humiliate other constitutions. To hurl such accusations so casually demeans this institution. In the majority’s judgment, any resistance to its holding is beyond the pale of reasoned disagreement. To question its high-handed invalidation of a presumptively valid statute is to act (the majority is sure) with the purpose to “disparage,” ”injure,” “degrade,” ”demean,” and “humiliate” our fellow human beings, our fellow citizens, who are homosexual. All that, simply for supporting an Act that did no more than codify an aspect of marriage that had been unquestioned in our society for most of its existence— indeed, had been unquestioned in virtually all societies for virtually all of human history. It is one thing for a society to elect change; it is another for a court of law to impose change by adjudging those who oppose it hostes humani generis, enemies of the human race.

Chief Justice John Roberts made a similar, if more measured, point in his own dissent:

The majority sees a more sinister motive [for DOMA], pointing out that the Federal Government has generally (though not uniformly) deferred to state definitions of marriage in the past. That is true, of course, but none of those prior state-by-state variations had involved differences over something—as the majority puts it—“thought of by most people as essential to the very definition of [marriage] and to its role and function throughout the history of civilization”… That the Federal Government treated this fundamental question differently than it treated variations over consanguinity or minimum age is hardly surprising— and hardly enough to support a conclusion that the “principal purpose”… of the 342 Representatives and 85 Senators who voted for it, and the President who signed it, was a bare desire to harm… At least without some more convincing evidence that the Act’s principal purpose was to codify malice, and that it furthered no legitimate government interests, I would not tar the political branches with the brush of bigotry.

While I admire Roberts (and I suppose Scalia too) for urging his colleagues to assume good faith on the part of DOMA’s defenders, it is somewhat disingenuous to maintain that there is no “convincing evidence” that animus played a role in its passage. A report of the House Judiciary Committee on DOMA, as quoted by Justice Elena Kagan during the case’s oral arguments, explained that “Congress decided to reflect and honor a collective moral judgment and to express moral disapproval of homosexuality” in passing the law. The lawyer defending DOMA before the Court responded that “we are not going to strike down a statute just because a couple of legislators may have had an improper motive. We’re going to look… [i]s there any rational basis[?]”

For Scalia, ordinarily a champion of textualism, originalism, and the need to consider legislative intent when interpreting the meaning of statutes, to elide this fact seems irresponsible. Of course, his position is that the defense of traditional marriage need not involve animus, and this is admittedly true – if in the world of 1996 more so than that of 2013. But it is not prima facie absurd to suppose that, for many of the lawmakers who voted for DOMA, their “expression of disapproval of homosexuality” did indeed shade into a kind of “disparagement of homosexuals.” We cannot prove this beyond a reasonable doubt, but we are hardly lacking evidence.

To supporters of same-sex marriage, some of the more benign justifications for DOMA proffered by the lawyers defending it may seem like desperate post hoc rationalizations. Nevertheless, in his 2012 opinion upholding the Affordable Care Act, Chief Justice Roberts quoted an earlier decision that held that “every reasonable construction must be resorted to [by a court], in order to save a statute from unconstitutionality.” In the case of Obamacare, this involved interpreting the “penalty” levied on individuals who fail to buy insurance as a “tax” that was legitimately authorized by the Constitution. The analogy isn’t perfect, but it captures the principle that a suspect interpretation of a law need not seal its fate if less nefarious interpretations are available (assuming that the law does not openly violate some other provisions of the Constitution).

Scalia also touches in his dissent on the issue of “scrutiny,” or the threshold used by the Court in a particular case to determine whether the justification for a law is an acceptable one. When federal laws employ racial classifications, for example, legal precedent has established that “strict scrutiny” must be applied; statutes that treat people differently on the basis of race have historically had such unpleasant motivations that any new laws of this sort must have a really good reason for discriminating as they do.

As Scalia points out, the Court does not say in Windsor that laws involving classifications dealing with sexual orientation require “strict” or even “heightened” scrutiny, and so it has implicitly bound itself to use the most “deferential” standard possible: so-called “rational basis review.”

In accord with my previously expressed skepticism about the Court’s “tiers of scrutiny” approach, I would review this classification only for its rationality… As nearly as I can tell, the Court agrees with that; its opinion does not apply strict scrutiny, and its central propositions are taken from rational-basis cases like Moreno. But the Court certainly does not apply anything that resembles that deferential framework. See Heller v. Doe… [which states that] a classification “must be upheld . . . if there is any reasonably conceivable state of facts” that could justify it…

Is there such a “reasonably conceivable state of facts”? Chief Justice Roberts believes that the claim that DOMA serves to create a uniform definition of marriage for the purposes of thousands of federal statutes and regulations suffices: “[i]nterests in uniformity and stability amply justified Congress’s decision to retain the definition of marriage that, at that point, had been adopted by every State in our Nation, and every nation in the world.” Again, I don’t mean to claim that homophobia had nothing to do with the process by which DOMA came into being (it almost certainly did), but only that there is a “reasonably conceivable state of facts” under which the law aims at a rational and legitimate purpose.

Like Andrew Sullivan, I was pleased with the outcome of Windsor, although I’m sure that it would have been all the more satisfying if I too had played a pivotal role in bringing America to this point. In his exuberance, however, he seems to forget some of what he had previously written about how he hoped the debate over same-sex marriage would play out.  I wish that he had been more consistent in his opposition to judicial partisanship, especially in light of his comments at Haverford a few months back. Sullivan is right to praise Anthony Kennedy for writing eloquently in the majority opinion about the equal dignity of gays, but he ignores his own criticism of the man’s penchant for peregrination when he supposes that that eloquence is enough – legally speaking – to make it the right decision.

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